UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY SUMMARY OF THE llatp of Uten. By basil MONTAGU, Esq. BARRISTER AT LAW. LONDON : PRINTED FOR J. AND W. T. CLARKE, LAW-BOOKSELLERS, POKTLGAL STREET, I,INCOLn's-INN, 1821. ^ T J. M'Creeiy, Tooks^ouit, Chaucery-Laue, Loudou. TO THE RIGHT HONORAULE JOHN LORD EI.DON, LORD HIOH CHANCELI.OU OF GREAT BRITAIN, THIS SUMMARY IS MOST RKSPECTFCLLY INSCUIItEl). BASH. MONTAGU. lS3 Lien of vendors .... Whether the whole is delivered Absolute deliveries Conditional deliveries . Regaining possession . 4 4 5 7 8 9 10 11 11 12 12 14 17 Cljapter ii THE CLAIMANT MUST HAVE SOME UNSATlSllKn DEMAND 19 CONTENTS. Chapter iii. EXTENT OF POSSESSORS POWER Power of sale ...... Power of using the chattel .... Power of assigning the chattel .... Power to hold the chattel to the injury of third persons 21 21 22 22 22 part II. Chapter i. LIENS BY CUSTOM Liens by general custom Property which the claimant was compelled to receive Property taken by legal process Trade lieu .... Lien on property found General cases Liens by special custom To what debts a lien for a general balance extends 23 23 23 25 25 26 27 28 30 Cf)apter ii. LIEN BY AGREEMENT Liens by agreement expressed Lien by agreement implied 32 33 34 part III. WAIVER OF LIEN 'Express agreement of waiver 36 36 CONTENTS. PA6B Implied agreement of waiver .;.... 37 by previous agreement inconsistent with lien 38 by taking security ..... 40 by taking for a particular purpose . . 42 part IV. LIEN IN PAKTICULAR CASES . . 43 Chapter i. LIEN RESPECTING SHIPS . . 43 Lien on the ship ........ 44 for repairs and necessaries for English ships in England 44 for repairs and necessaries for English ships abroad 46 for foreign ships 47 for wages . 47 Lien on ships' papers 48 Lien on the cargo ........ 48 Waiver of lien respecting ships . . . . . . 51 Cfjaptec II. LIEN UPON PUBLIC DOCUMENTS . 52 « Chapter m. LIEN OF ATTORNEY ... 53 For what an attorney has a lien . . . • • 54 Against whom an attorney has a lien ..... 5i CONTENTS. Upon what an attorney has a lien Mode of securing attorney's lien upon the judgment Waiver of lien by an attorney .... Lien of agents and clerks in court 55 57 59 60 Chapter iv. LIEN AGAINST THIRD PERSONS . 6l Where the claim is not for a general balance . . . 6l Where the claim is for a general balance .... 63 Lien against assignees of bankrupts ..... 69 When the transaction is complete before the bankruptcy . 69 When the transaction is wholly after the bankruptcy . . 70 When the transaction is inchoate at the time of the bank- ruptcy . . . . . . . . . 71 Judgments, recognizances, and attachments .... 74 Book II. EQUITABLE LIEN 76 Chapter i. EQUITABLE LIEN OF VENDOR AND VENDEE 77 Lien of vendor 77 Waiver of his lien . 78 by taking bills and notes 79 by taking a bond 80 by taking a mortgage 80 in general .... 84 In case of bankruptcy 85 CONTENTS. PAGE Marshalling assets . 85 Lien of vendee ........ 89 Chapter ii. EQUITABLE LIEN BY DEPOSIT OF DEEDS . 90 Delivery of only part of the deeds 91 Delivery of deeds to a third person for the creditor . . 92 Delivery of deeds for a particular purpose .... 93 As to lien extending to future debts 94 CASES NOT ARRANGED. Omitted cases ......*•• 95 Lien in case of the crown 96 %Mt of CiteD Cases. Those Cases marked App. are printed in the Appendix. A. App. Adams v. Claxton, 35. Alger V. Hifford, 57. Anderson, ex parte, 94. Andrews, ex parte, 29. 16 Anon. 12. Mod. 334, 11. 4 Anon. Lord Raym. 738, 53. Anon, 1. Vent. 343. 47. Anon. 2. Ves. Sen. 25, 57, 60. Aspinall v. Pickford, 29. Audley v. Halsey, 74. Austen v. Halsey, 77, 85, 86, 88. B. Baldwin v. Cole, 27. 4 Baglehole, ex parte, 90. Baring v. Day, 26, 51. Barker v. Goodair, 74. Bayley v. Banning, 74. Bell, ex parte, 53, 69. Birdwood v. Raphael, 34, 73. Birley v. Gladstone, 48, 49, 76. 158 Bishop V. Ware, 19,50. 138 Blackburn v. Gregson, 77, 84, 86, 88. Blake v. Nicholson, 8, 29, 37. 157 Boardman v. Sill, 27, 37. 120 Bolton V. Tate, 63. Bond V. Kent, 77, 81. Bo'.vles V. Rogers, 77, 85. Brcnnan v. Currint, 39. 13 Browne, ex parte, 35. Bruce, ex parte, 93. Bryant, ex parte, 53, 58. Buckley v. Taylor, 70. App. Bucks V. Bristead, 26. 19 Buller, ex parte, 52, 56. Burgess v. Wheate, 77, 89. Burn V. Browne, 7. Bury's case, 52. Bush, ex parte, 53, 69, 70. 8 Bush V. Fearon, 51. Butler V. Woolcott, 63. 88 Buxton V. Shee, 44. Castle, ex parte, 56, 57. Cator V. Lord Pembroke, 77, 78. Chapman v. Allen, 39. 3 V. Derby, 62. 3 V. Tanner, 77, 7S, 86, 88. Clifton V. Burt, 88. Cole V. Davies, 74. Comer v. Walkley, 83. Coming, ex parte, 6, 15, 90, 92, 93. Coombe, ex parte, 72, 90, 93, 94. Co!^ nd V. Stein, 9, 11, 70. Coppin V. Coppin, 77, 78, 85, 87. Coweil V, Simpson, 36, 40, 41, 53, 59. 126 Crawshay v. Hornfrayj 38, 63. Creswell v. Byron, 59. 119 D. Daubigny v. Duval, 63, 66. 27 Davis V. Bowsher, 29, 36, 42. Deeze. ex parte, 25, 28, 29, 31. 9 TABLE OF CITED CASES. App. Demandy v. Metcalfe, 35. Denie v. Elliott, 57. Doddington v. Hallet, 43. Doe V. Bevaii, 90. Doughty, ex parte, 11. Dovvtinian, ex parte, 28. V. Matthews, 35. Drake v. Mitchell, 41. Drinkwater v. Goodwyn, 9, 19, 29, 70. 18 Elliott V. Edwards, 77. Ellis V.Hunt, 11, 12. F. Farewell v. Coker, 60. 7 Farmer v. Davies, 45. Fawell V. Heelis, 77, 78, 82, 86, Featherstone v. Fenwick, 90. Finden, ex parte, 90. Forrester v. Lord Leigh, 88. Furlong v. Howard, 22, 54. 87 G. Gibbons v. Baddall, 77, 80. Gilbert v. Berkeley, 24. Gladstone v. Birley, 1, 32, 76. 117 Glaister v. Hewer, 56. Godingv. London Assurance, 29. Good V. Jones, 68. Grant v. Mills, 79, 85. Gray v. Cockerel, 60. 8 Green v. Farmer, 1, 29, 30, 31, 37. 17 Green v. Haythorne, 14. Griffin v. Eyles, 71. Gwynne, ex parte, 11, 15, 85. 116 H. Haigu, ex parte, 90. Hales V. Vanderchem, 91. Halket, ex parte, 46. 138 Hall V. Ody, 57. Hallet V. Bousfield, 5, 22. Hamilton v. Davies, 51. Hammond v. Anderson, 11, 12, 15, 16. Hammonds v. Barclay, 1, 19, 47, 62. 46 Hanson v. Meyer, 11, 14, 15, 16. 96 Hardy, ex parte, 52, 56. App. Harford v. Carpenter, 90. Harrison, ex parte, 43. Harrison v. Southcote, 77, 78. Hartford v. Jones, 26, 51. 4 Hartley v. Hitchcock, 18. Hartop V. Hoare, 21. S Harvey v. Liddiard, 5, 6. Hearne v. Boteler, 77, 80. Herbert, ex parte, 15. Hern v. Mill, 73, 90. Heywood, ex parte, 1, 6. Hill, ex parte, 50. Hiscox V. Greenwood, 61. Hoare v. Clement, 43. V. Parker, 55, 62. Hooper, ex parte, 33, 90. v. Ramsbottom, 64. 139 Hornby, ex parte, 60. Horncastle v. Farren, 42. Hostler's case, 21, 39. 1 Houghton V. Matthews, 2, 9, IS, 31. Houlditch v. Desanges, 38. Hughes v. Kearney, 77, 78, 79, 80. Humphreys v. Partridge, 30. Humphries v. Wilson, 73. Hunt v. Pasmore, 72. Hunter, ex parte, 77. V. Berkley, 25. Hussey v. Christie, 45, 46, 50, 61, 63. 120 Hutton v. Bragg, 7, 38, 39, 50, 73. 171 Jackson v. Irving, 75. John V. Jackson, 47. Johnson V. Skipper, 46. Jones V. Pearle, 17, 21. 6 V. Sniilh, 35. V. Thnrloe, 21, 23, 29. 6 Jourdaine v. Leftvre, 29. Justin v. Ballam, 44. K. Kensington, ex parte, 33. Kinlock V. Craig, 2, 5, 29. 21 Kirkman v. Shawcross, 2, 29, 30, 32, 34, 35. Knight v. Hooper, 11. Krugar v. Wilcox, 1, 8, 29. 14 TABLE OF CITED CASES. App. L. Lacon v. Merlins, 77. Lambert v. Robinson, 19. Langford v. Pitt, SS. Langston, ex parte, 33, 35, 74, 90. Lanyon v. Blanchard, 67. 131 Lawson v. Dickinson, 55, 59. 6 Learmouth, ex parte, 52, 56. Lee, ex parte, 70. 27 Lempriere v. Pasley, 7, 71. Levy V. Barnard, 17, 20. Lickbarrovv v. Mason, 1, 4. Loaring, ex parte, 79, 80, 85. App. Norris v. Wilkinson, 90, 94. 109 Nunez v. Modigliani, 56. O. Ockenden, ex parte, 1, 9, 28, 29,31,35. 11 O'Dea V. O'Dea, 57. Olive V. Smith, 30,31. Omerod v. Tate, 57, 58. 43 Oppenheim v. Russell, 28, 29, 34, 64. 54 Orlebar v. Fletcher, 75. Owenson v. Morse, 10, 11, 15, 40, 41. M. Maans v. Henderson, 29, 34, 67. M'Combie v. Davies, 5, 62, 66. Mackintosh v. Ogilvie, 74. Mackreth v. Symmons, 77, 78, 79, SO, 81, 83, 84, 85, 87, 89. Maestar v. Atkins, 48, 52. Mann v. Forrester, 68. V. Shiffner, 65, 67. Marsh, ex parte, S3. Martini v. Coles, 65. Meneton v. Gibbous, 46. Merrywether v. Mellish, 57. Meyer v. Sharpe, 73. Middleton v. Hill, 56. Mills V. Gregory, 47. Mitchell V. Scaife, 49. V. Oldfield, 53, 56. Moreland v. Lashley, 56. Mores v. Conham, 22. Morgan, ex parte, 10. Moss V. Townshend, 21. Mountfort, ex parte, 90, 94. Munro, ex parte, 69. N. Nairn v. Prowse, 77, 78, 81, 82, 84, 86. Nathan v. Giles, 65. Naylor v. Mangles, 23, 28, 29. Nesbitt, ex parte, 29, 54, 55, 62. Newland v. , 74. Newton v. Trigg, 24. Nichols V. Clent, 6, 71. Nicholson v. Chapman, 26. Parker v. Carter, 29, 53, 69, 41 70. 20 160 Pearse, ex parte, 92. Pemberton, ex parte, 29, 54, 59. Peters v. Soame, 69. Phillips V. Hunter, 74. 159 V. Thompson, 74. V. Rodie, 48. 133 51 Pickford v. Maxwell, 15, 40. Pierson V. Dunlop, 11. PoUexfen v. Moore, 77, 85, 66, 87, 88, 89. Pothonier v. Dawson, 21, 37. 170 Powell V. Brockway, 77, 80. Pultney v. Keymer, 62. 141 36 39 67 165 R. Raitt V. Mitchell, 40, 45. Randal v. Fuller, 56. 1 Read v. Dupper, 57, 58. Rex V. Smollett, 60. 2 Rich V. Coe, 44, 45. Richards v. Borieti, 92. Richardson v. Goss, 64. Ridell V. Waterhouse, 30. Roberts v. Figgs, 56. Robinson v. Walter, 21, 23. Rose V. Hart, 39. 159 Rosse v. Branslead, 10, 21. 31 Ross V. Laughion, 53, 54. Row V. Dawson, 69, 70. 88 Rugg V. Minelt, 14. Rushforth v. Hadfidd, 2, 23, 28, 29, 30, 34. 102 Russell V. Russell, 90. 24 TABLE OF CITED CASES. App. S. Sandison, ex parte, 53. Saville v. Barchard, 30. 44 Schoole V. Noble, 56. Scott V. Franklin, 29. Seaforth, ex parte, 7. Shank, ex parte, 7, 42, 45, 46. 12 Sharp V. Roahde, 75. Skinner v. Sweet, 56. V. Upshavv, 25. Sloper V. Fish, 74. Slubey V. Howard, 11, 12. Smallcomb v. Cross, 74. Smith, ex parte, 72. V. Hebbard, 77. V. Plummer, 4, 45, 46, 47, 48. 190 Snook V. Davidson, 66. 130 Sodergreen v. Flight, 8, 50. Spears v. Hartley, 28, 29, 31. 38 Stevenson v. Blakelock, 38, 41, 55, 59. 153 Stirling, ex parte, 29, 36, 54, 56, 59. 125 Stone V. Lingwood, 27. 7 Stoveld V. Hughes, 13. Swaine v. Senet, 57, 58. Sweet V. Pym, 5, 17, 29, 39. 37 T. TardifFe v. Scrughan, 77. Taylor v. Jones, 25. Taylor v. Popham, 53, 57. 106 Thurstout V. Crafter, 56. Trimmer v. Bayne, 77, 85, 87, 89. Turwin v. Gibson, 55, 62. Twort V. Darell, 57, U. Usher, ex parte, 75. V. Vanderzee v. Willis, 29, 41. 23 Vaughan v. Davies, 57. Vernon v. Hankey, 10, 70. App. W. Waldron's case, 60. Walker v. Birch, 19, 29, 36, 42. 31 Walker v. Preswick, 77. Wallace v. Breeds, 16. Ward V. Folton, 9. V. Hepple, 60. 123 Warner, ex parte, 90. Warren, in re, 75. Watkinson v. Barnardiston, 44, 47. Weldon v. Gould, 29, 31, 68. 40 Welsh V. Hole, 53, 57, 58. Wells V. Osman, 47. Westerdell v. Dale, 45. Wetherell, ex parte, 90, 91. Westwood V. Bell, 68. 166 Weymouth v. Royer, 40, 76. Whitbread, ex parte, 90, 93. White V. Baring, 45, 46, 49. 44 Whitehouse v. Frost, 14. Whitehead v. Vaughan, 17, 29, 30, 69. 20 Wilkins v. Carmichael, 2, 44, 46, 47, 53, 57, 63. 19 Wilson V. Balfour. 1, 6, 70. V. Heather, 3, 32, 43. 160 v.M'Taggart, 9,48,51. 146 Winch V. Keeley, 69. Wood V. Hamilton, 44. Woolf V. Summers, .39, 49. 131 Wright, ex parte, 94. Yorke v. Grenhaugh, 23, 25, 26,61. 4. V. Grindstone, 24. 4 Young V. Sutton, 52. , ex parte, 43. ^itn. fntrotiuctari) Chapter. Lien is a right by the possessor of property to hold it for the satisfaction of some demand, {a) Doubts have been entertained whether the courts do or do not favor liens, {b) (a) The following are dicta, defining the meaning of the word Lien: — D. Buller, J. Lickbarrow v. Mason, 6. East, 27, in Note, liens arc qualified rights • which, in given cases, may be exercised over the property of another. In Hammonds v. Barclay, 2. East, 227, Grose, J., a lien is a right in one man to retain that which is in his possession belonging to another, till certain demands of him, the person in possession, are satisfied. Wilson V. Balfour, 2. Camp. 379, Lord Ellenborough, " A lien means a right to bold." " The question with respect to lien always is, whether there be a right to detain the goods till a given demand shall be satisfied." Gladston v. Birley, 2. Mcri- vale, 404. Ex parte Heywood, 2. Rose, 357, D. Lord Ellenborough," Lien, in its legal sense, ) means a right to possess, or to retain." i (6) Tlie following are the dicta upon the subject : — In Ex parte Deeze, A. D. 1748, 1. Atk. 228, Lord Chancellor—" Notwithstand- ing the rules of law as to bankrupts reduce all creditors to an equality, yet it is hard where a man has a debt due from the bankrupt, and has, at the same time, goods of the bankrupt in his hands, whicii cannot be got from him without the assistance of law or equity, that the assignees should take them from him without satisfying the whole debt." Kruger v. Wilcox, A. D. 1755, Amb. 252, Lord Hardwicke says, " This is a case Wv IH-. of bankruptcy, in which tiiis court always inclines to equality ; yet if any person has a specific lien, or a special property in goods, which is clear and plain, it shall be re- served to him, notwithstanding his bankruptcy." In Green v. Farmer, A. D. 1768, 1. Black, 651, Lord Mansfield says, " Natural 1 Mvl), B 2 f nttotruct0tp Chapter. Lien is either at law or in equity. equity is certainly ranch in favor of liens ; so that courts of justice have always leaned tliat way, as far as w as consistent with positive law." In Wilkins v. Carniicliael, A. D. 1779, Dong. 97, Lord Mansfield says, « Notwith- standing the strongest inclination tiiat the defendant should have satisfaction before the vahie of the ship is paid over by him, we are not able," &c. D. Ashurst, J. Kinloch v. Craig, 1789, 3. Ter. Kep. 119,—" Doctrine of liens ought to be governed by equitable principles." In Kirkman v. Shawcross, A. D. 1794, 6. T. R. 14, Lord Kenyon says, "In every case which has occurred, and in which the question of liens has arisen, it has been the universal wish, of the courts, at all times, to extend the lien as far as possible." See also the opinions of all the judges in this case. Lawrence, J. — " It is laid down, in the case in Burroiv, that liens are for the con- venience of commerce, and that they are on the side of natural justice. And the question here is, whether an agreement, which is on the side of natural justice, be or be not illegal, it having been made by a number of persons." In Houghton v. Matthews, 1803, 3. Bos. and Pull. 485. D. Lord Alvanley — " I am not desirous of favoring liens to so great an extent as has been done by the courts of late ; for we know it has been determined, that the members of any trade may, by agreement among themselves, obtain the benefit of that sort of lien to which a factor is entitled by the general law. I am sorry the courts have gone so far." Le Blanc, J. General liens are a great inconvenience to the generality of traders, because they give a particular advantage to certain individuals who claim to them- selves a special privilege against the body at large of the creditors, instead of coming in with them for an equal share of the insolvent's estate. All these general liens in- fringe upon the system of the bankrupt laws, the object of which is to distribute tlie debtor's estate proportionably amongst all the creditors, and they ought not to be encouraged. Enshforth v. Hadfield, 7. East, 2'28. Lord Ellenborough. But at least it must be admitted, that the claim now set up by the carriers is against the law of the land, and the proof of it is therefore to be regarded with jealousy. Lawrence, J. It is not fit to encourage persons to set up liens contrary to law. The carrier's convenience does not require any extension of the law ; for they have already a lieu for the carriage price of the particular goods, and if they choose volun- tarily to part with that, without such a stipulation as I have mentioned, there is no reason for giving them a more extensive lien in the place of that which they were entitled to. I should not be sorry, therefore, if it were found generally that they have no such lien as that now claimed upon the ground of general usage. Le Blanc, J. This is a case where a jury might well be jealous of a general lien, attempted to be set up against the policy of the common law, which has given to car- riers only a lien for the carriage price of the particular goods. The party, therefore, who sets up such a claim, ought to make out a very strong case. Q. 1. Will not the courts be disposed to favor the lien as against the debtor, from the justice that a debtor should secure his creditor, and because the law is disposed to favor every lerson who is vigilant in the protection of his righta ?— Q general Custom. 25 for the carriage upon ihe goods intrusted to him to de- liver, (z) Although a carrier receive the goods from a person who stole them, he has a lien against the right owner, {a) A farrier has such lien, (b) PROPERTY TAKEN BY LEGAL PROCESS. If a horse is distrained to compel an appearance in a hundred-court, there is not any lien, after appearance, for the keep, (c) If the lord of a manor seize a beast as an estray, and keep it for some time after having proclaimed it : he has a lien for the keep, [d) TRADE LIEN. It seems that every tradesman has a lien upon property intrusted to him in the course of his trade, for debts con- tracted in the execution of the very purpose for which the property was intrusted, [e) It has been said that a livery-stable keeper has not a lien upon a horse for his keep. (/) (z) Skinner v. Upsliaw, Lord Raym. 752. (App. 4.) (a) Yorke v. Grenaiigh, Lord Raym. 866. (App. 4) (b) Bac. Abr. Trover E. 694.. Yelv. 67. (c) B. N. P. 45. But if ahorse be distrained in order to compel an appearance in a bundred-court, after appearance the plaintiff cannot justify detaining the horse till paid for bis keeping. (d) Taylor v. Jones, 2. Roll. Abr. 92. 3. Bac. Abr. Trover. B. N. P. 45, where it is thus stated : — " A lord of the manor seized a beast as an estiay, and kept it for some time after having proclaimed it. The owner afterwards, and within the year and day, claimed it, and brought trover without first tendering a satisfaction for the keeping of it : and for the want of that it was holden that the action would not lie." (e) Ex parte Deeze, 1. Atk. 228. Ex parte Ockeiiden, 1. Atk. 235. (/) It is said to have been ruled by Lord Kenyon in Htniter v. Berkley, Esp. N. P. 583. The privilege of retainer is confined to innkeepers j for a livery-stable keeper has no such privilege to detain a horse for his keeping : for it is allowed to innkeepers on the ground of their being obliged to receive guests and their horaes ; 26 ILien at ILato. LIEN ON PROPERTY FOUND. A man who finds the property of another which hap- pens to have been lost or mislaid, {g) and voluntarily puts himself to some trouble and expense to preserve it, and to find the owner, has not a lien upon it for the recom- pense which he may reasonably deserve. (//) If timber is placed in a dock on the banks of the Thames, and the ropes with which it is fastened acciden- tally get loose, and the timber float, and is carried down by the tide, and left at low water upon a towing-path on the banks : and a person remove the timber to a place of safety, he has not a lien upon the timber for his trouble and expenses, {h) The finder of a horse has not a lien upon it for his expenses, (h) The finder of a dog has not a lien upon it for its keep. (/) A person, who by his own labour preserves goods, which the owner, or those intrusted with the care of them, have either abandoned in distress at sea, or are unable to protect and secure, has a lien upon the goods for a proper compensation for his trouble, [m) but that is not the case of livery-stable keepers who rely on the contract. Per Holt, C. J. in York v. Grenaugh, Lord Raym. 868. Lord Holt says, " The livery-man cannot retain for the meat, but has a remedy upon the contract : for he is not compellable to receive such horse : but Q. Do not liens exist in almost every trade, where the tradesman cannot be compelled to receive the articles? 2. Esp. N. P. 90. Hunter V. Berkley, Esp. N.P. 583. Lord Kenyon. Q. Whether, (admitting that a livery-stable keeper is not within that class of cases where the lien arises from the obligation of the party to receive goods,) there is any difference between the case of a livery-stable keeper and any other tradesman who receives them optionally. (g) These words are inserted to distinguish this class of cases from the cases in salvage. (h) Nicholson v. Chapman, 2. H. Blackst. 254. (App. 24.) (0 Bucks V. Bristead, 2. Blackst. 1171, (App. 19.) cited in Nicholson v. Chap- man. 2. Hy. Blackstone, 254. (App. 24.) (m) Hartford v. Jones, 1. Lord Raym. 393. (App. 4.) Baring and others v. Day, Hien bp general Custom. ^i7 GENERAL CASES. If the captain bring a small consignment on his own account, and a large consignment for the owner, and the owner enter the whole cargo at the custom-house, pay the duty, and have the whole delivered out to him, it has been decided that the owner has not against the captain, a lien on his consignment for the duty. {71) The surveyor of the queen's works has not a lien upon the tools of a carpenter to enforce him to continue until the queen's work is completed. {0) It seems to have been doubted whether there is a lien for warehouse-rent, {p) 8. East, 57. See Hamilton v. Davies, 5. Burr. 2732. Abbot, 383. As to th« amount of the compensation and the modes of recovering it, see Abbot, 284 and 5. (n) Stone V. Lingwood, 1. Strange, 651. (App. 7.) (o) Baldwin v. Cole, 6. Mod. 212. (App. 4.) (f>) Boardman v. Sill, 1. Camp. 410. sect. «. (App. 150.) 28 Eten at EaUi. § 2. LIEN BY SPECIAL CUSTOM. A lien by special custom is a right to retain for more than the debt contracted in the execution of the purpose for which the property was intrusted. The existence [q) and extent of a lien by special cus- tom, are matters of evidence. The proof of a lien by special custom for a general ba- lance cannot be. established by a few recent instances of the detention of goods by a few carriers for their general balance, (r) If a carrier claiming a lien by special custom for his general balance, prove that he has frequently retained goods for his general balance, and various common car- riers, who have followed their occupations from twenty to thirty years and upwards, depose generally to their custom of retaining for their general balance, and specify various instances within twelve years, and one instance so far back as thirty years, and the jury, upon this evi- dence, negative the custom, the court will not grant a new trial, {s) When the right to a general lien has been frequently proved, it cannot be disputed. (/) A lien by special custom for a general balance is not favoured by the courts, {u) (q) Ex parte Deeze, A. D. 1748, 1. Atk. 228. (App. 9.) with the comment upon it in Ex parte Ockenden, A. D. 1754, 1. Atk. 235. (App. 11.) See also Ex parte Ockenden and Downman, Prec. in Ch. 580, cited in Ex parte Ockenden. See Nay- lor V. Mangles, 1. Esp. Ca. 109. (App. 31.) Oppenheim v. Russel, 3. Bos. and Pull. 42. (r) Rushforth v. Hadfield, 6. East, 519. (App. 102.) (s) Rushforth v. Hadfield, 6. East, 526. 7. East, 224. (0 Naylor v. Mangles, l. Esp. 109. Spears v. Hartley, 3. Esp. 81. (App. 38.) (m) Rushforth v. Hadfield, 6. East, 526. 7. East, 224. See Note (&), ante, page 1. Hien bp special Custom. 29 WHAT PERSONS HAVE OR HAVE NOT A GENERAL LIEN. Who have a geueral lien. Who have not a general lieu. Cases unsettled Attornies.(a) Bankers, (i) Brokers, (c) Calico-printers, (d) Factors, (e) Fullers in some places, (fj Packers, (g) Wharfingers. (A) Common carriers, {i) Innkeepers, {k) Millers. (/) Printers, (jn) Dyers, (w) (0) Ex parte Nesbitt, 2. Sch. and Lef. 279. Ex parte Stirling, 16. Ves. 259. Ex parte Pemberton, 18. Ves. 382. (b) Jourddine v. Lefevre, 1. Esp. Cas. 66. Davis v. Bowsher, 5. Term Rep. 488. Scott V. Franklin, 1812, 15. East, 428. See Vanderheyden v. Willis, 3. Bro. 21. (c) Whitehead v. Vaughan, Cooke, 579. Parker v. Carter, Cooke, 602. Manns V. Henderson, 1. East, 3o5. See 3. Esp. 182. D. Lord Ellenborough, Scott v. Franklin, 15. East, 434. (d) Ex parte Andrews, Cooke, 460. Weldon v. Gould, 3. Esp. 268. (e) Kruger v. Wilcox, A. D. 1755. Amb. 252. Coding v. London Assurance, Burr. 494. A. D. 1758. Green v. Farmer, A. D. 1768. 1. Blackst. 651. Drink- water V. Goodwin, A. D. 1775, Cowper, 251. D. AshUurst, J. Kinlock v. Craig, 3. Term Kep. 119. D. Lord Kenyon, Walker v. Birch, A.D. 1795, 6. Term Rep. 258. (/) Sweet V. Pym, 1. East, 4. (g) Ex parte Deeze, A. D. 1748, 1. Atk. 223. See in Ex parte Ockenden, A. D. 1754, 1. Atk. 235, where the Chancellor says, In Ex parte Deeze there was evidence that it is usual for packers to lend money to clothiers, and the cloth to be a pledge not only for the work done in packing, but for the loan of money likewise. In Green V. Farmer, 1. Blackst. 651, A.D. 1768, Lord Mansfield says, A packer, according to the course of trade, is certainly entitled to a lien upon ail goods in his hands, being in the nature of a factor. (ft) Naylor v. Mangles, 1. Esp. 109. Spears v. Hartley, 3. Esp. 81. (t) Kirkman v. Shawcross, A. D. 1794, 6. T. R. 14. Aspinall v. Pickford, A. D. 1800, 3. Bos. and Pull. 44. Oppenheim v. Russel, A. D. 1802, 3. Bos. and Pull. 4'/. Rushforth v. Hadfield, A. D. 1805, 6. East, 519. 7. East, 224. Sec 6. East, 25. in note. (fc) Jones V. Thurlow, 9. G. IL 8. Mod. 172. (1) Ex parte Ockenden, 1. Atk, 238. (m) As it seems by Blake v. Nicholson, 3. Maule and SpIw. 167. (n) Green v. Farmer, 8. G. IH. l. Bl. 651, it wa» decided that thcrt^ was not atiy 30 Eien at llato'^ TO WHAT DEBTS A LIEN FOR A GENERAL BALANCE EXTENDS. It has been said that a factor has not any general lien such lien. Since that time the followin'; cases have been decided. In Rushforth v. Hadfield, 1805, 6. East, 519, it was said in argument, At the time of Green v. Far- mer, in 1768; it was holden that a dyer had no lien for his general balance, but only for the dyeing of the particular goods, though since that such a lieu has been esta- blished. In a note to Rushforth v. Hadfield, 6. East, 5'22, Mr. East says, The same was said in the argun.ent of the case of Whitehead and others, assignees of Mitford v. Vaughan, T. 25. Geo. III. B. R. which turned upon the lien of a policy-broker, that since the case of Green v. Farmer dyers had been ruled to have a lien for their gene- ral balance : but I have not been able to meet with any such case ; nor was there any allusion made to it in Kirkman and another, assignees of Walker v. Shawcross, t). Ter. Rep, 14, where the dyers, dressers, whisters, printers, and calenders of Manchester and its neighbourhood established a lien for their general balance, upon proof of a special advertisement to that effect, and notice of it by the contracting party. And in Close and another, assignees of Ridell v. Waterhouse and others, which was trover for woollens delivered by the banknipt before his bankruptcy to the defendants, dyers at Halifax, to be dyed: where a tender had been made of the price of dyeing the particular goods, but the defendants claimed to retain for their general balance for the expense of dyeing other goods, on the ground of usage ; the jury at the trial, before Rooke, J. at York, negatived any such usage at Halifax, and found a verdict for the plaintiffs : and on a motion for a new trial in T. 42. Geo. III. the Court of K. B. finally discharged the rule, being of opinion that, as the usage was negatived, tlie defendants could not retain for the price of dyeing any other than the particular goods, or at most only for the dyeing 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 iu their hands at one time which had been delivered at several times, did not give them a lien on the goods in question remaining in their hands for the price of dyeing such other dis- tinct parcels. In Ohve v. Smith, 4. Taunt. 60. Gibbs, C. J. says, My Lord Chief Justice has told me that early in his life, in the very teeth of Green v. Farmer, he and the late Lord Ashburton proved a custom for dyers to have a lien for their gene- ral balance, and I have myself proved that custom several times since. In Saville v. Barchavd, 41. Geo. III. 4. Esp. 53. In this case upon the evidence adduced. Lord Kenyon ruled that the defendant had such lien for his general balance. The next case is Humphreys v. Partridge, before Mr. J. Lawrence, Gloucester Summer Assizes, 1803. The only point agitated was a dyer's right to retain for his general balance : nearly :' My bro- ther Lens says, admitting that, nevertheless the defendant lias a right to hold Ihe ship till the terms are complied with, (viz. of the payment of the money due to tlie defen- dant), on which the vessel was delivered. But I do not tliink. those were the terms on which it was delivered: we must find those terms in the bi'l of sale, which is aa agreement of mortgage. Dallas, J. The case lies in a very narrow compass: the question was, whether this was a mere security for the debt due, or a transler of the ship : this depends on the facts of the case. It is not a mere deposit for tbe sum ad- 44 JLien at HatD. The cases on this subject may be thus exhibited ^ 1 . On the ship. r 1. For repairs and necessaries. I r\. For EngUsh ships. J I p. In England. ) i (2. Abroad. , 1.2. For foreign ships. V. 2. For wages. 2. On the ship's papers. ^ 3. On the cargo. §1. LIEN ON THE SHIP. LIEN ON SHIP FOR REPAIRS AND NECESSARIES FOR ENGLISH SHIPS IN ENGLAND. There is not any lien upon a ship for necessaries pro- vided in England, or for repairs done in England, by a tradesman who works upon the ship without taking it into possession, [a) vanced, but an agreement for the transfer of the ship. The proof is, that a bill of sale is executed : for what purpose, but to transfer the property in the ship ? The indorsement shews it more strongly, reciting that the intent was, that the defendant should sell and convey the ship : bow could he convey, unless he had the property in the ship i (a) Hoare v. Clement, 2. Show. 338. Justin v. Ballam, Salk. 34, Lord Raym. 809. Abbot, 135. Buxton v, Shee, 1748, 1. Ves. 154. Ex parte Shank, 1. Atk. 234. Wilkins v. Carraichael, Doug. 97. Watkinson v. Barnardiston, 2. P. Wms. 567, and the note in Cox's edition. Wood v. Hamilton, House of Lords, June 15, 1789, Abbot in note, 141. Rich v. Coe, 1777, Cowp. 636. This was a question whether the owner was liable to an action for necessaries for a ship, which was let to the les- see for a term of years. During the judgment Lord Mansfield said, whoever supplies a ship with necessaries, has a treble security : 1. The person of the master. 2. The specific ship. 3. The persoual security of the owners. The creditors trust specifi- aim on g>!)ij)£;. 45 It has been intimated that a shipwright, who has taken a ship into his own possession to repair it, may have a lien upon the shfp. {b) It seems that a shipwright has a lien upon a ship in his dock when he is to be paid in ready money as soon as the repairs are finished, [c) If a shipwright to whom a ship is delivered to be repaired, where by the usage of the trade, when there is no express agreement as to the time of payment the shipwright gives credit for the repairs generally fifteen months, sometimes eighteen months, he has no lien on the ship for re- pairs, (c) The captain or master has not any lien on the ship or freight for repairs or necessaries, {d) cally to the ship, and generally to the owners. See also D. Lord Mansfield, Farmer V. Davies, 1. Term Rep. 109. There is a dictum of Lord Kenyon to the same effect in White v. Baring, 4. Esp. 23, but a new trial was granted. It is to be observed upon this dictum as to the lien on the ship, 1st, That it was extrajudicial. In Wes- terdell v. Dale, 1797, 7. Term Rep. 313, Lord Keny. says, other points have been discussed in this case, but it is not necessary to go into them at large, or to give any decisive opinion upon them now. But as some cases have been referred to on these points, I think it proper to observe that, whenever it becomes necessary to decide those questions, those cases may perhaps deserve further consideration. In Rich v. Coe, it was said that the person supplying a ship with necessaries has a treble secu- rity ; the person of the master, the ship, and the personal security of the owners ; but I doubt whether that doctrine is not too generally laid down. Sir J. Jekyll held in a case before him that the master could not subject the ship if in England, and that was afterwards confirmed by Lord Hardwick. In Abbot, 135, he says, (speaking of tliis dictum of Lord Mansfield in Rich v. Coe), But in a recent case to which I have more than once had occasion to refer. Lord Kenyon, alluding to two cases, that will be presently mentioned, expressed a doubt whether the doctrine of Lord Mansfield on this subject was not too generally laid down : and upon the review of the deci- sions whicii I am about to quote, one of wliich was pronounced by Lord Mansfield himself, it appears that the law of England has not adopted this rule of the civil law with regard to repairs and necessaries furnished here in England. Smith v. Plum- mer, l. Barnwell and Aid. 581. (/>) Abbot, 135. See Hussey v. Christie, 13. Yes. 595. (App. 120.) See Ex parte Shank, l.Atk. 234. (App. 12.) (c) D. Lord Ellenhorough. Raitt v. Mitchell, 4. Camp. 146. (A|)p. 141.) ante, 10, ('i) Hussey v. Christie, 13. Vcs. 594. 9. East, 427. Smith v. Plummcr, l. Barn. 46 Hien at %M. LIEN ON THE SHIP FOR REPAIRS AND NECESSARIES FOR ENGLISH SHIPS ABROAD. The master has not any lien upon the ship for money expended or debts incurred by him for the repairs done to the ship upon the voyage, ffj It has been said that a person who repairs a ship in a foreign port, has a lien upon the ship for the value of the repairs, {g) The master when at sea or in a foreign port may bor- row upon maritime interest any sum payable at the ter- mination of the voyage, for repairs or victuals, or for any other purpose necessary for the completion of the enter- prise, and may pledge the ship and freight, which is called hypothecation, (h) The captain may hypothecate by a bond in a port in Ireland. (?*) The master cannot hypothecate the ship for any debt of his own. (A) A contract of hypothecation does not transfer the pro- perty of the ship, but only gives the creditor a claim upon it, to be carried into effect by legal process. (/) and Aid. 380. See Ex parte Halket, 2. Rose, 194, 229. In White v. Baring, 4. Esp. 22. Lord Kenyon ruled that the captain who paid engagements on account of the ships had a lien on the cargo and freight, but a new trial was granted. (/) Hussey v. Christie, 9. East, 426. Smith v. Plummer, 1. Barn, and Aid. 581. (§•) Ex parte Shank, A. D. 1754, 1. Atk. 234. But see Semb. Contra. Ex parte Halket, 2. Rose, 194, 229. (A) MoUoy, Book II. c. 11. s. 11. Abbot, 153. Johnson v. Skipper, 2. Lord Raym. 982. Wilkins v. Carmichael, Doug. 101. Meneton v. Gibbons, 3. Term Kep. 267. (i) Meneton v. Gibbons, 3. Term Rep. 267. (&) Abbot, 155 {I) Abbot, 156. ECen on g>f)(i>s. 47 The proceeding against the ship is in the Admiralty court, [vi) LIEN ON THE SHIP FOR REPAIRS AND NECESSARIES FOR FOREIGN SHIPS IN ENGLAND. It has been decided in a court of Admiralty that a person who has supplied arms and stores in London to a foreign ship has a lien upon the surplus arising from the sale of the ship under a decree of the court in a suit by the mariners for wages, (w) LIEN ON THE SHIP FOR WAGES. All persons, except the captain, have a lien upon the ship for wages J [o] the captain has not such lien.(p) The seamen have a lien upon the ship for wages earned in rigging and fitting it out, or for wages due in preparing for a voyage on which the ship does not pro- ceed, {q) Seamen have a lien for wages due for bringing a ship from one port in England to another. (;■) The consignee of a ship for sale, to whom the ship and the ship's register is delivered, has a lien upon the ship for money which, after her arrival, he pays for seamen's wages and the necessary use of the ship, {s) (m) For the mode of proceeding, see Abbot, lo4. (n) John V. Jackson, 3. Robinson, 288. See some observations respecting this decision in Abbot, 144, and note that the master died abroad. (o) Wilkins V. Carmichael, A. D. 1779, Dong. 101. Watkinson v. Bernardiston, A. D. 1726, 2. P. Wms. 367, in a note to Mr. Cox's edition, where it appears that the captain and seamen were adjudged to have a lien on the ship for wages. (p) See Abbot, 461, where all the cases are collected. Smith v. Plnmmer, 1. Barn, and Aid. 581. (q) Wells v. Osnian, 2. Lord Raym. 1044. S. C. 6. Mod. 238. Mills v. Ore- gory, Sayer, 127. Abbot, 467. (r) Anon. i. Vent. 313. Abbot, 461. («) Hammonds v. Barclay, 2. East, 227. Sec note (d), ante, 15. 43 Mm at %m. § 2. LIEN ON ships' PAPERS. If the owner of a ship authorise a person to take pos= session of the ship under a power of attorney, that he may be enabled to sell it, he has a lien upon the ship's papers which are in his possession for his charges in un- successfully attempting a sale, (v) § a. LIEN ON THE CARGO. The lien for the freight is consequential upon the lien on the ship, (a) The captain and the owners have a lien upon the cargo for freight, [b] The ship-owner has no lien for dead freight where the remedy is in damages, (c) All wares and merchandizes landed and warehoused in the East India Docks under the provisions of 54. Geo. III. c. 228, are, when so landed and warehoused, subject to such and the same claim for freight as such goods respec- (y) Maestaer v. Atkins, 5. Tauut, 381. (a) D. Lord Ellenboroiigh in Smith v. Plnmmer, 1. Barn, and Aid. 582. (b) Wilson V. M'Taggart, 1. Maiile and Selwyn, 147. (c) Phillips V. Rodie, 15. East, 517, Lord Ellenborongh says, " What is a lien for freiglit but a right to detain the goods on board until the freight which has been actually earned upon them, which is always capable of being calculated and ascer- tained, has been paid, and where the owner of the goods knows ^*hat he is to tender r But here the claim to retain is for the amount of damages unasceitained, which the parties are entitled to recover for the non-completion of tlie cargo, commonly called dead /mg^/jf ; but it is that term, /m^/i<, which has misled ilie defendants; for it is noX. freight, but an unliquidated compensation for the loss of freight, recover- able in the absence and place of freight. See Birley v. Gladstone, 3. Maule and Selwyn, 205. Eieu on i^ijips. 49 lively were subject or liable to whilst the same were on board the ships, and before the landing thereof, (c) The owner has not a lien for dead freight or demurrage under a covenant where the freighter binds the goods and merchandizes in the ship in a penal sum for non-perform- ance of the covenants, [d) If the owner of a ship let her for a voyage, and the freighter covenant to pay a fixed sum for the freight, and the agent abroad of the freighter consign a homeward cargo, and transmit the bills of lading to his brother in- stead of the freighter whose solvency he suspects ; and if the amount of freight stated in the bills of lading be less than the amount in the charter-party, it has been ruled that the owner has not as against the brother, a lien upon the cargo for more than the amount mentioned in the bill of lading, {e) The owner has not a lien for a sum claimed in respect of goods which were put on board at the loading port, but afterwards relanded and restored to the agent of the freighter under process of law at the loading port, ffj It has been ruled that the master of a ship has a lien upon the luggage of a passenger, but not upon his per- son for his passage-money, {g) It has been ruled that the captain has a lien on the freight for goods furnished to the ship by his direction and on his credit, (i) The master may detain any part of the merchandize (c) 54. Geo. III. c'. 228. s. 18. See Horncastle v. Farreii, 3. Barn, and Aid. 498. (d) Birley v. Gladstone, 3. Maule and Selwyn, 205. 2. Merivale, 401. (e) Mitchell v. Scaife, 4. Camp. 298. (f) Birley v. Gladstone, 3. Maule and Selw. 205. 2. Merivale, 401. , (jg) Well V. Summers, 2. Camp. 631. (i) White V. Baring, 4. Esp. 22. (App. 44.) 50 Eien at ILalD. for the freight of all that is consigned to the same per- son, (k) If the owner of a ship charter her for a voyage, and the charterer is to pay by good bills, it has been deter- mined that the owner has not, upon dishonor of the bills, any lien for the freight. (/) It has been decided that if the owner charter the ship for an outward and homeward cargo, the master to be at liberty to reserve the cabin for his sole use, and the usual accommodation for his crew and ship's stores, the owner has not a lien for freight. (/) Ship creditors for repairs have no lien upon the freight on a homeward voyage when the ship is partly sold on the outward voyage, {o) The master has no lien upon the freight or cargo for repairs or wages for advances made by him abroad, (p) The cargo may be hypothecated, {q) Wherever the master may pledge the ship, he may also pledge the freight, (r) It has been ruled that if the owner of goods send a barge for them whilst they are on board a vessel moored to a quay, the captain has not any lien for wharf- age, (s) A person, v^^ho by his own labour preserves goods which the owner, or those intrusted with the care of them, have either abandoned in distress at sea, or are unable to (k) Sodergrene v. Flight and another, Guildhall, T. 1796, cor. Lord Kenyon. Abbot, 245. (i) Button V. Bragg, 2. Marshall, 348. (App. 171.) (o) By V. C. Ex parte Hill, 1815, 1. Madox, 61. (p) Smith V. Plummer, 1. Barn, and Aid. 181. (App. 1^0.) (7) The Gratitudiue, 3. Rob. 240. Hussey v. Christie, 13. Ves. 599. Abbot, 167. (»•) Tlie Gratitudiue, 3. Rob. 240. The Jacob, 4. Rob. 345. (s) Bishop V. Ware, 3. Camp. 360. (App. 138.) Uten on i^Ijips. 5i protect and secure, has a lien upon them for a proper compensation for his trouble. (/) Persons who rescue goods from a ship on fire have a lien on the goods for salvage, {ii) The obligee in a respondentia bond in the usual form has not any lien upon the goods or the proceeds arising from the sale of the goods, {x) ■WAIVER OF LIEN RESPECTING SHIPS, &C. If goods are removed out of a ship into the West India Docks in obedience to the law, the captain does not part with his lien, (j/) The master cannot detain the goods on board the ship till the payments are made, [z) The practice is to send the goods to a wharf, and order the wharfinger not to part with them till the freight and other charges are paid, (a) (0 Hartford v. Jones, 1. Lord Raym. 393. Baring v. Day, 8. East, 57. See also Hamilton v. Davies, 5. Burr. 2732. Abbot, 383. As to the amount of the com^ pensation, and the mode of recovering it, see Abbot, 384 and 5. (u) Hartford v. Jones, Lord Raym. 393. (App. 4.) (r) Bush V. Fearon, 4. East, 319. (y) Wilson v. M'Taggart, 1. Maule and Selw. 147. Lord Ellenborough, Oh. J. There was also another objection made, viz. that the plaintiffs had parted with their lien by landing the goods at the West India Docks, and therefore there was no con- tinuing lien at the time of the delivery to the defendants, the parting with which, where it still continues, may be a good consideration to raise an implied assumpsit to pay the freight, against the person in whose favour the lien is relinquished. Lord Ellenborough, Ch. J. upon the last objection stated to the jury, that as the goods were removed out of the ship, and deposited at the West India Docks by act of law, he was of opinion it ought not operate to the prejudice of the plaintiff's lien, which therefore still subsisted. (z) Abbot, 245. The reason which Abbot assigns is, " as the merchaDt would then have no opportunity of examining their condition." (a) Abbot, 246. E 2 62 CHAPTEll li. Eten upon public Documents. It seems that a clerk of assize has not any lien upon a record of the court for his fees, (6) An attorney has not against the assignees any lien up- on a commission of bankrupt or upon the proceedings : and the books to which the bankrupt refers at his last examination are part of such proceedings, (c) Although the solicitor under a commission has not any lien on the proceedings against the assignees, it seems that he may have a lien as against the bankrupt for the costs of a deed of composition to supersede the commis- sion, {d) If a bankrupt obtain an order for the enrolment of any part of the proceedings, the clerk of the enrolments has not any lien against the assignees for his fees, (e) There may be a lien upon a ship's register. (/) The commissioners under a commission of partition cannot refuse to return the commission until their ex- penses are paid, {g) (b) Bury's Case, 1. Leacb, C. C. 238. Dong. 195, in note. (c) Ex parte Learmouth, Jan. 1807, and constant practice. Ex parte Hardy, 1. Rose, 395. (d) Ex parte Buller, l. Rose, 134. (e) Ex parte Sandison, 1. Rose, 275. (7) Maestaer v. Atkins, 1. Marshall, 76. (App. 159.) (g-) Young V. Sutton, 2. Vesey and B. 365. 53 CHAPTER III. Lien of attorney* An attorney has a general (A) lien against his client for his costs on all the papers with which he is intrusted by his client, and upon money, or upon a judgment reco- vered for him. {i) The court seems disposed to favour the lien of an at- torney as advantageous both to the solicitor and client, {k) A solicitor who obtains possession of papers a.s prochein amy has not any lien upon them by virtue of such pos- session. (/) The practice with regard to the lien of an attorney upon papers is not very ancient, [m] If a solicitor receive from his client papers in the course of a cause for the purpose of doing justice to such client, the client is entitled, notwithstanding the solicitor's lien, to a production of the papers in that, although not in any other cause, [n) If a decree is made for an account against an executor (A) See note (a), ante, page 29. (i) Anon. 12. Mod. 554. Park v. Carter, Cooke, 514. Ex parte Bush, 7, Vin. 74. Ex parte Bell, Aug. 18, 1803, Cooke, 429. Mitchell v. Oldfield, 4. Ter. Rep. 123. Welsh V. Hole, 1779, Doug. 238. Taylor v. Popliam, 1808, 15. Ves. 72. Cowell V. Simpson, 1809. 16. Ves. 276. Anon. 6. Wni. and M. 1. Lord Raym. 738. Wilkins v. Carmichael, 1779, Doug. 104. Ex parte Bryant, 1815, I. Maddox, 52. (fc) See Ex parte Bryant, 1. Mad. 52. See ante, note (i), page 1. (0 March 12, 1810. The chancellor decided this point in a cause, the title of which I could not learn : but Mr. Serman, of Gray's Inn, was solicitor on one side, and Messrs. Cooper and Lowe on the other. (m) See Anon. 6. W. and M. 1. Lord Raym. 738. See Wilkins v. Carmichael^ Doug. 104, (App. 19.) and Cowell v. Simpson, 16. Ves. 275. (App. 126.) (n) Ross V. Laughton, 1. Ves. and Beames, 350. 54 Eien at Eato. with the usual direction to produce all papers, &c., and the defendant become bankrupt, and his assignees are incapable of proving his discharge in the master's office, without certain vouchers which were in the progress of the cause, previous to the bankruptcy, deposited by the bankrupt with the solicitor whom the assignees do not continue to employ, the court will upon the motion of the assignee, order the solicitor to produce and shew to the master all such vouchers, &c. in his possession or power relating to payments made by the defendant on account of the estate of the testator, (o) A solicitor who has a lien on a deed for his costs is bound to produce it for the benefit of a third person, if his client would be bound to produce it. {p) The questions upon this subject may be thus ar- ranged : r 1. For what he has a lien. 2. Against whom he has a lien. ^ , T 1 -i 3. Upon what he has a lien. r 1. In general . . i ^ ..... i 4. Mode of securing his hen. J \^5. Waiver of his lien. f . , (1. Lien of agents. V 2. In particular cases J ( 2. Lien of clerks in court. POR WHAT AN ATTORNEY HAS A LIEN. An attorney has a general lien, (q) An attorney has a lien upon all papers in his possession, although his charge is not in the cause for which the pa- pers are delivered, (r) (o) Ross V. Laugbton, 1. Ves. and Beames, 550. (p) Furlong v. Howard, 2. Sell, and Lef. 115. (App. 87.) See ante, page 22. (q) Ex parte Pemberton, 1810, 18. Ves. 382. Ex parte Stirling, 1809, 16. Ves. 259. (App. IS.-i.) ante 22. Ex parte Nesbitt, 1805, 2. Schoales and Lef. 279. (App. 88.) (r) Ex parte Nesbitt, 2. Sch. and Lef. 279. (App. 88.) !Lim of Slttomep. 55 AGAINST WHOM AN ATTORNEY HAS A LIEN. Whether an attorney has a Hen upon papers the pro- perty of third persons has been doubted, [g] If a tenant for life give deeds into an attorney's hands, he has not a lien upon them against the remainder man. (r) If deeds are delivered to an attorney to prepare a mortgage, he has not against the mortgagee a general lien for his demand against the mortgagor, {s) The solicitor of a plaintiff who dies has a lien upon the sum decreed in preference to bond creditors, {t) UPON WHAT AN ATTORNEY HAS A LIEN. An attorney has a lien on the papers of his client, and upon money, or upon a judgment recovered, (i;) It seems that an attorney has a lien only upon papers which come into his possession as attorney in the course of his professional business, (z/) If a client accept five bills of exchange at different dates drawn by his attorney for the amount of his bill of costs, of which bills some have been refused payment, and an execution afterwards issue against the client at the suit of one of his creditors and the client give to the attorney a sum to discharge the debt, and upon payment of such sum to the creditor, the creditor deliver to the attorney a lease which had been deposited by the client with the creditor as a collateral security for the debt, the attorney has a lien upon the lease, {u) (q) See Bac. Abr. Tit. Attorney (/). (r) Ex parte Nesbitt, 2. Scli. and Lef. fi!79. (App. 88.) Hoare v. Parker, 2. T. R. j76. («) Lawson v. Dickenson, 8. Mod. 307. (App. 6.) (0 Turwin v. Gibson, 3. Atk. 720. (») See note (i), ante, page 64. (u) Stevenson v. Blakelock, i. Maule and Selw. 536. (App. 153.) 56 JLien at ilatu. If a client deliver his own deeds to an attorney to pre- pare a mortgage, the attorney has against him a general lien on such deeds, (j/) An attorney has not any lien upon the commission of bankruptcy or the proceedings j and the books to which the bankrupt refers in his last examination are part of such proceedings. (2) Although the solicitor under a commission has not any lien on the proceedings against the assignees, it seems that he may have a lien against the bankrupt for the costs of a deed of composition to supersede the commission, [a) If costs upon a bankrupt petition be ordered to be paid to a client against whom a commission afterwards issues before the costs are taxed, the solicitor has a lien upon such costs, [b) If an executrix be indebted to the estate, and entitled under the will to an annuity, her solicitor has a lien for his costs upon any payment of the annuity to which the exe- cutrix may be entitled, after payment of what may be due from her to the estate, [d] In the Court of King's Bench {e) the attorney's lien upon the judgment of his client must be first satisfied be- fore the opposite party can set off any debt due to him from the client; but in the Court of Common Fleas, (f J (y) Ex parte Stirling, 16. Ves. 258. (App. 125.) (z) Ex parte Learmoulli, Jan. 1807, and constant practice. Ex parte Hardy, 1. Rose, 395. See ante, page 53. (o) Ex parte Buller, l. Rose, 134. (6) Ex parte Castle, 1809, 15. Ves. J. 542. (d) Skinner v. Sweet, 1818, 3. Mad. 244. (c) Mitchell v. Oldfield, 4. Term Rep. 123. Randal v. Fuller, 6. Term Rep. 456. Glaister v. Hewer, 8. Term Rep. 69. Moreland v. Lashley, 2. H. Blackst. 441. Middleton v. Hill, 1. Maule and Selw. 240. (/) Roberts v. Figgs, 28. Geo. II. 2. Barnes Siippl. 12, cited by counsel in Thurstout V. Grafter, C. P. 2. Blackst. 826. Schoole v. Noble and others, 1. H. Blackst. 23. A. D. 1788. Nunez v. Modigliani, 1. H. Blackst. 217. A. D. 1789. flien 0f Sttomep. 57 and in Chancery [g) the attorney's lien extends only to the difference after the demands between the parties are satisfied. attorney's mode of securing his lien upon the judgment. An attorney may obtain an order to stop his client from receiving money recovered in a suit upon which he has a lien. (//) If a client upon changing his attorney obtain an order that his old attorney's bill shall be taxed, and that he shall deliver up all books, &c., the old attorney is entitled to the order with the prothonotary's allocatur endorsed thereon, {i) If a client change his solicitor the old solicitor cannot prevent the hearing of the cause in equity as a mode of enforcing his lien, [k) An attorney cannot be defeated of his lien by a collu- sive settlement between the clients. (/) The clients may by a composition or any reasonable consideration for the costs settle the suit but not by a mere voluntary release, (m) If a defendant, against whom judgment is obtained, pay v/ithout fraud the amount to the plaintiff, before he Vaughan v. Davies, 2. H. Biackst. 440. Denie v. Elliott, 2. H. Blackst. 589, A. D. 1705. Hall V. Ody, 2. Bos. and Pull. 28. A. D. 1799. (g) Taylor v. Popham, 13. Ves. 59, 15. Ves. 72. Ex parte Castle, 15. Ves. 539. (A) D. Lord Mansfield, Wilkins v. Carmichael, Doag. 104. Vi^elsh v. Hole, Doug. 239. (i) Alger v. Hifford, 1. Taunt. 38. (k) O'Dea v. O'Dea, 1. Scli. and Lef. 315. Merywether v. Mellish, 13. Ves. 161. Twort V. Darell, 13. Ves. 195. (0 See Anon, 1750, 2. Ves. Sen. 25. Welsh v. Hole, 1779, Doug. 238. Kead V. Dupper, 1795, 6. Term Rep. 361. (App. 36.) Omerod v. Tate, 1801, t. East, 64. (App. 43.) Swaiu v. Senet, 1806, 2. N. R. 99. (m) Auonymous, 2. Vei. 25. ^8 JLien at JLato. has notice of the attorney's lien, the payment is good, (n) If the clients compromise without notice of the lien, it has been determined that the compromise is valid, (o) If a plaintiff who is a prisoner call upon one of the bail for the defendant, and propose to settle the action by payment of part of the debt, to which the bail agrees, and the defendant's attorney attend with the plaintiff and settle the debt in pursuance of the agreement without any notice to or from the plaintiff's attorney, he may proceed to judgment, and issue a scire facias for his costs against the bail, {p) If a sum is awarded to be paid by a defendant, and the plaintiff's attorney give notice to the defendant not to pay it to the plaintiff as he has a lien for his costs, and the defendant pay the plaintiff notwithstanding such no- tice he is liable to repay it. {q) If after an order that a party shall pay costs to a peti- tioner, the petitioner, in consideration of certain actions against him being withdrawn, and of his name being erased from certain bills of exchange, execute to the party a release of the costs named in the order, after notice given to the party not to pay the costs to the petitioner but to his attorney, the release will not protect him from payment of costs to such attorney, (r) (n) Read v. Dupper, 6. T. R. 361. (App. 36.) (o) Welsh V. Hole, Doug. 236, in Swain v. Senet, 2. N. R. 101, Sir J. Mans- field, speaking of Welsh v. Hole, says, " I do not collect from the cases stated that any positive rule has been laid down which obliges us to hold that the plaintiffs attor- ney may be cheated of his costs, unless he has given notice to tlie defendant or his attorney not to pay them over. The case which is strongest in favor of this applica- tion rather appears to rue to imply the contrary. Lord Mansfield there seems to think that ten guineas might be a reasonable compensation for a man who has lain two years in gaol, which the defendant in that case had done. (p) Swain v. Senet, 2. N. R. 99. (7) Omerod v. Tate, J. East, 464. (App. 43.) (r) Ex parte Br3'aiit, 2. Rose, 337. 1. Maddock, 49. Lien of Sttomep. 59 WAIVER OF LIEN BY AN ATTORNEY. If an attorney decline to proceed for his client, he has not a lien upon any sum in court in the suit wherein he acted as attorney, (s) It has been said that an attorney has not a general lien upon any writings which are delivered to him on a special trust, {t) If the deeds are delivered to a solicitor to raise money or prepare a mortgage, and the object having failed, they are permitted to remain in his hands, he has a lien upon them for his general balance, [u) If an attorney take promissory notes payable three years after date for his bill, it has been decided that the client may, before the notes are due, insist upon a deli- very to him by the attorney of the different papers upon which, previous to taking the notes, he had a lien, [x) If a client accept five bills of exchange at different dates, drawn by his attorney for the amount of his bill of costs, of which bills some have been refused payment, and an execution afterwards issue against the client at the suit of one of his creditors, and the client give to his attorney a sum to discharge the debt, and upon payment of such sum to the creditor, the creditor deliver to the attorney a lease which had been deposited by the client with the creditor as a collateral security for the debt, the attorney has a lien upon the lease, (j/) If a solicitor who has papers in his hands relating to a (s) Cresweli V. Byron, 14. A'es. 271. (App. 119.) (0 Lawson V. Dickenson, 8. Mod. 307. (App. 6.) See ante, 42, (7) and (r). (u) Ex parte Pemberton, 1810, 18. Yea. 287. Ex parte Stirlint,', 16. Ve?. 269. (ar) Cowell v Simpson, 1809, 16. Ves. 276. (App. 126.) But see next article, and Stevenson v. Blakelock, 1. Maiile and Selw. 53o. (y) Stevenson v. Blakelock, 1. Mauic and Sclw. 536. (App, 163.) ante, 41 and 66. 60 lien at Eatu. bankrupt's estate, obtain an order under the commission to have his bill of costs taxed and to be permitted to prove the amount to be found due upon the taxation, he waives his lien, (z) If a solicitor who has papers in his hands relating to a bankrupt's estate, upon which he claims a lien, obtain an order to have his bill taxed and to prove the sum found due upon taxation, the assignees until the taxation may inspect the papers, (z) LIEN OF AGENTS AND CLERKS IN COURT. If a client change his solicitor in the country, the agent has a lien for what is due in the cause from the new soli- citor and the old solicitor, [b) A clerk in court has a lien upon papers for any sum due from the client to the solicitor, (c) A clerk in court has not a lien against the client for money lent to the solicitor to carry on the cause, [d) A clerk in court has a general lien as well on collateral proceedings as on a decree, (e) A clerk in court has a lien upon a sum due from the client to the attorney by whom a bill has been delivered including the clerk in court's demand. (/) (z) Ex parte Hornby, 1. Buck, 351. (b) Ward v. Hepple, 15. Ves. 297. (App. 123.) (c) Tanwell v. Coker, 2. P. Wms. 460. (d) Gray v. Cockeril, 2. Atk. 113. (App. 8.) (e) Anonymous, 2. Ves. Sen. 25. (/) Waldron's Case, 2. Strange, 1126. Rex v. Smollet, 3. Burr. 1313. See Ward V. Hepple, 15. Ves. 297. (App. 123.) 61 CHAPTER IV. LIEN AGAINST THE PROPRIETOR WHEN THE CLAIMANT HAS OBTAINED THE GOODS NOT FROM THE PROPRIETOR. The cases on this subject may be thus exhibited : {1 . When the claim is not for a general balance. 2. When the claim is for a general balance. \^ 2. In bankruptcy. WHERE THE CLAIM IS NOT FOR A GENERAL BALANCE. Liens may be derived through the acts of servants or agents, acting within the scope of their employment, (or) It has been ruled that if a servant break his master's carriage, and, without the knowledge of the master, take it to a coachmaker's who has never been employed by the master as his coachmaker, and the coachmaker repair it, he has not any lien upon the carriage against the mas- ter, (h) Although the traveller has stolen the horse, the inn- keeper has a lien against the right owner. (/) Upon a consignment of property which comes into the possession of the consignee after the death of the con- signor, it seems that the consignee has the same lien against the executors of the consignor which he had against the consignor j but it is clear that the consignee (g) D. Lord Ellenborougli, Ilusscy v. Christie, 9. East, 433. (App. 120.) (A) Hiscox V. Greenwood, 4. Esp. 174. (i) Yorke v. Gienaiigli, Lord Raym. 866. (App. 4.) See ante, page 24, note (i). 62 %itn at HatDi has such lien if the executors confirm the acts of the con- signor, {k) It has been decided that a factor has not a lien upon goods intrusted to him by his principal against the exe- cutor of his principal. (/) A tenant for life cannot give a lien against the remain- der man. (m) Whether an attorney has a lien upon papers, the pro- perty of third persons, has been doubted, (r) The solicitor of a plaintiff who dies has a lien out of the sum decreed in preference to bond creditors, {s) It has been ruled, that if the consignee of sugars place them with a broker who, without notice of the principal, makes advances, and accepts bills on the credit of the sugar, he has a lien upon them against the consignor for the amount of the sum and acceptances, [t] If a broker buy goods in his own name for his princi- pal, and afterwards tortiously pledge them as his own, for a loan of money, the creditor has not, as against the principal, any lien upon the goods, [u) If goods be imported and landed at a wharf, and, by the custom of trade, the wharfage is paid by the importer at the Christmas following the importation, v^hether the goods be removed or not -, and the goods are sold, and an (fc) Hammonds v. Barclay, 2. East, 227. (App. 46.) It has been decided that a factor iias not a lien upon cloths against the executor of his principal. Chapman v. Derby, 1689, 2. Vern. 117. (App. 3.) Sed Q. It seems that the representative of a person deceased has the same lien which the testator had. Bolton v. Tate, 1818, 1. Swanston, 84. (/) Ciiapman v. Derby, 2. Vern. 117. (App. 3.) Sed. Q. See Hammonds v. Barclay, 2. East, 227. Bolton v. Tate, 1. Swan. 84. (to) Hoare v. Parker, 2. Term Rep. 378. Ex parte Nesbitt, 2. Sch. 279, ante, 55. (r) See Bac. Abr. Title. Attorney. (/) ante, page 55. (s) Tnrv\ia v. Gibson, 3. Atk. 720. ante, page 55. (0 Pultiiey V. Keymer, E. 40. G. III. 3. Esp. 182. (u) M'Combie v. Davies, 6. East, 538. 7. East, 5. (App. 160,) Eien against tljirU IPersons. 63 order of delivery given to the vendee, to whom part of the goods are at different times delivered, and the time for payment of the wharfage elapse, the wharfinger has not any lien upon the remainder of the goods against the vendee, [a] It has been said that a lien is a personal right, and cannot be transferred to another, (b) If a carpenter, who has parted with his lien on a ship, be paid his demand by the captain, who continues in possession, the captain cannot derive any lien as standing in the place of the carpenter, (c) If a lien be derived from an agent acting within the scope of his authority, and the agent pay the creditor entitled to the lien, it does not follow that the agent has the lien, (d) If a servant pay a tailor who has a lien on clothes, the servant has not a lien, {d) WHERE THE CLAIM IS FOR A GENERAL BALANCE. It has been said that general liens are not to affect the rights of third persons not claiming under those from whom the right to the lien is derived, (x) A carrier has not a lien against the consignee for a ge- neral balance due from the consignor, (j/) Upon an agreement for a general balance between a carrier and a consignor, the carrier has not any lien against the consignee for a general balance due from the consignor. (3/) (a) Crawshay v. Homfray, Nov. 1820, 4. Barn, and Aid. 50. (6) Daubigny v. Duval, 5. Term Rep. 605. (c") Wilkins v. Carmicliael, Doufi;. 97. (d) D. Lord Ellcuboront^li in Hussey v. Christie, 9. East. 433. (x) D. Rooke, J. Richardson v. Goss, 3. Bos. and Pull. 419. (y) Butler v. Woolcott, 2. New Scries, 64. (App. 88.) 64 Eten at liato. If a contract of sale of goods on credit be rescinded whilst the goods are in transitu, and the goods, before they can be stopped by the vendor, are afterwards delivered at a wharf for the use of the vendee, and the wharfinger has not [z) advanced any money, or accepted any bill upon the credit of the goods, he is entitled against the vendor to a lien only for the carriage of the goods, {a) An agreement between a carrier and a consignee for a lien for his general balance, will not entitle the carrier to a lien for his general balance due from the consignee upon the goods being stopped in transitu by the con- signor, (c) If the proprietor of a lease agree to sell it to be paid by bills of exchange at different dates, and that the lease shall remain in the hands of an attorney as a collateral security for the payment of the bills, and the proprietor of this lease afterwards obtain it from the attorney, and pledge it with his bankers, to whom with other securities he also gives the bills of exchange, the bankers have not against the purchaser, a lien upon the lease for more than the amount of the bills, {d) If a trader abroad consign goods to his factor in Eng- land to be sold by such factor for the benefit and on ac- count of the principal, who is a creditor of the factors, and the goods are by the bill of lading to be delivered to the factor or his assigns ; and the factor indorse the bill of lading, and deliver it together with the goods to a bro- ker to whom the factor is indebted ; and the broker ad- (2) See Lord Alvanley's judgment in Richardson v. Goss, 3. Bos. and Pull. 126, and postea under property in transitu: where the consignee has aliened the goods before their arrival. (o) Richardson j^. Goss, 3. Bos. and Pull. 126. (App. 67.) ( c) Oppenheim v. Russell, 3, Bos. and Pull. 42. (App. 54.) (d) Hooper v. Ramsbottom, 4. Camp. I21. (App. 139.) ILtcn against tljirti pecsons. 65 vance a further sum of money to the factor upon the cre- dit of those goods, and the hroker has no knowledge that the factor was not the owner of the goods, and the goods remain unsold in the possession of the broker, and the factor is indebted to the principal, the broker has not any lien upon the goods against the principal, {e) It has been said that cases may exist where a principal would be bound by a pledge made by his factor, ffj If a creditor has a lien upon a cargo, a creditor of the principal's cannot attach it or the produce of it, without discharging the lien, [g) If a foreign merchant direct his correspondent in Eng- land to effect an insurance on a cargo, and the corres- pondent in pursuance of such directions, order his broker to insure, and a loss happen, the broker has the same lien against the merchant which the correspondent has. [h) If a factor pledge the goods of his principal, the prin- cipal may recover the value of them in trover from the pawnee upon tendering to the factor what is due to him on account of those goods without any tender to the (c) Martini v. Coles, l.Mauleand Selw. 140. (/) In Martini v. CoJes, 1. Maule and Selw. 140. Lord Ellcnborongli, C. J. says, " The defendants, having anthority to sell the goods, if tliey had advanced money for any purposes connected with the sale, and for which brokers in the ordinary course of disposing of goods are accustomed to advance it, would have had a lien in respect of such ad vance."— Le Blanc, J. " If, indeed, advances were made merely to take up the bill of the consignor, and were appropriated to that purpose, there would be no mischief; and that might be considered in furtherance of the authority given by the principal : but if a party make advances to a factor without inquiring for what pur- pose they are made, he must be contented to rest on the authority with which it shall appear that the factor is clothed."— Baylcy, J. " Cases may perhaps exist wheic a principal would be bound by the pledge made by his factor ; but, supposing one of those cases to be where money has been advanced in payment of a bill drawn by tlie principal for part of the price of the goods : it is not so found here ; on the contrary, the claim is in respect of general advances : and if it had been so found, I do not say that it would have made any difference." (g) Nathan v. Giles, 5. Taunt. 658. (A) Man v. Shiffner, 2. East, 524. (App. 5>.) 66 Hicn at EalD. pawnee, although the amount tendered to the factor is less than the debt due from the principal to the factor, and less than the sum due from the factor to the pawnee. (/) If a merchant direct his broker to effect an insurance, who privately employs another broker, by whom the in- surance is effected, and such sub-broker has notice that the insurance is effected for the merchant, and the mer- chant is indebted to the broker to a greater amount than the broker is indebted to the sub-broker, it has been ruled that such sub-broker has not against the merchant a lien for a general balance due to him from the broker, {k) If a broker intending to give a security to a creditor to the extent of his lien against his principal, deliver the goods to the creditor, with notice of the lien, it seems that such creditor has, as against the principal, the same lien which the broker had. (/) If an agent effect an insurance for his principal, and the policy-broker know that it is for the principal, the (i) Daubigny v. Duval, 5. Term Rep. 605, On the trial the case was reduced to tliis point; whether or not the principals should have tendered to the pawnee the mo- ney advanced by them ? Lord Kenyon was of opinion that they onglit, it being with- in the money due from the plaintiffs as principals to their factor Devallon; and the plaintiffs were nonsuited. Upon the motion for a new trial, which was granted, Lord Kenyon, C. J. " As this is a case of great importance, and as my brothers are of an opinion that a new trial should be granted, I shall not resist it, though I have consi- derable doubts in my mind upon the question. The rule on which I proceeded at the trial was this, that the principal was not hound to tender a larger sum to the pawnee than was due from himself to the factor." In M'Combie v. Davies, 7. East, Lord Ellenborongh says, " In Dauhigny v. Duval, though Lord Kenyon was at first of opi- nion that there ought to have been a tender to the pawnee of the sum for which the goods had been pledged by the factor, within the extent of his lien in order to entitle the plaintiff to recover ; yet after the rest of the court had expressed a different opi- nion, on which he at that time only stated his doubts, he appears in the subsequent case of Sweet and another, assignees of Card, v. Pijm, to have fully acceded to their opinion ; for ho there states, " that the right of lien has never been carried further than while the goods continue in the possession of the party claiming it." (fe) Snook V. Davidson, 2. Camp. 218. (App. 130.) (I) M'Combie v. Davies, 7. East, 5. (App. 160.) JLien against tljtvti pei'sous. 67 broker has not any lien against the principal upon the policy for a general balance due to him from the agent, (w) If an agent, without naming his principal, effect the insurance in his own name, but warrant the property neutral, the broker has such notice that the insurance is not on account of the agent, as to deprive him, upon the bankruptcy of the agent, of any lien for a general balance due from such agent. (?7z) If a merchant inclose an unindorsed bill of lading of goods deliverable to the shipper's order, and direct him to effect an insurance upon it, and the shipper represent to a broker that he has authority to indorse the bill of la- ding, which he does indorse, and the broker effect an in- surance, by the direction of the shipper, it has been ruled that the broker has not, against the merchant, a lien for a general balance due from the shipper, (w) (wi) Maans v. Henderson, 1. East, 335. (App. 41 .) Man v. Shiflfner, 2. East, 523. (App.51.) (?i) Lanyon v. Blancliard, 2. Camp. 598. (App. 131.) I arrange it in this place, be- cause ihe representation by the shipper, that he had authority to indorse the bill of la- ding, scenis to imply that the insurance was not eflfected by the .shipper on his own ac- count. The words reported to have been used by Lord EUenborough are, " That in transactions of this sort, if an agent represents himself to have a power wiiich is not intrusted to him, his principal is not boun•) Pollexfen v. Moore, 3. Atk. 272. Fawell v. Heelis, 1773, Ambler, 724. This case was cited by the counsel for the plaintiff. The counsel for the defendant say " Pollexfen v. Moore is not correctly reported. The seller was considered as a creditor, rather than having a lien on the estate ; besides, in that case no security was given." Lord Apsley, C. " Pollexfen v. Moore, 3. Atk. 372, very inaccurately reported. J. P. seised in fee, after the death of his mother, of Orchard's farm, agreed to sell for ISOOZ. and delivered possession to Moore ; afierwards P. let the farm, and received the rents ; but by reason that the purchase-money was not paid, he kept the title-deeds. Bill to have the purchase completed, he offered to account for the rents, and to deliver np the deeds. The question in the cause was, how to secure the legatee?" In Blackburn v. Gregson, 1784, 1. Bro. 420, Kenyon in arg. says, " Pollexfen v. Moore is a lien for the unpaid residue of purchase-money." Mansfield for defendants. Pollexfen v, Moore makes Lord Hardwicke speak strange language, and make as strange a decree. Lord Loughborough. " Pollexfen v. Moore is not correctly reported in Atkyns ; but in substance right: there being in that case pur- chase-money unpaid." From a note of Lord Hardwicke's, I find he says, " I deli- vered my opinion that the remainder of the estate purchased was to lie liable, by viitue of the equitable lien." In Austen v. Halsey, ItiOl, 6. Ves. 480, Mansfield, arg. says, " Tiiat the vendor has such a right is proved by Chapman v. Tanner: Lord Hardwicke did the same thing in effect in Pollexfen v, Moore, a perplexed case. Roniilly and Newbolt for defendant. Pollexfen v. Moore is a very complicated case, and difficult to follow : but Lord Hardwicke seems to say that equity subsists only between the vendor and vendee, and does not extend to a third person. The decision does not quite agree with that. Lord C. " Pollexfen v. Moore is the only case cited ; but without that authority, I consider, &c." Nairn v. Prowse, 1802, 6. Ves. 756. The counsel in arg. say, " In Pollexfen v. Moore, Lord Hardwicke says, ' this equity subsists only between vendor and vendee, and no third person can i^arsijallinnf gtsiisets. 87 If a testator leave legacies to his infant children, and then give to trustees all his real and personal property in trust, to convey and assign the same, and all the savings and increase unto his son, upon his attaining twenty-one : and by a codicil the testator states that a proposal has been made to him to buy a real estate, and that, if he die before the purchase is completed, it shall be completed and settled when purchased, to the uses of his will di- rected concerning his other estates; and he give his trus- tees and executors power to apply the personal estate for that purpose: and he afterwards contract to purchase the estate, but die before the purchase is completed, it has been agitated whether the infant legatees, upon a defici- ency of the personal estate to pay their legacies, can avail himself of it.' " Trimmer v. Bayne, 1803, 9. Ves, 209, counsel for the plain- tiff in arg. say, " The question, whether the vendor's lien upon the estate for the purchase-money will extend to a third person, has never been decided. There is no such case, except PoUexfeii v, Moore ; v/hicli, as far as can be understood, is a deci- sion in favor of these plaintiffs; though the dictum dropped by Lord Hardwicke will be relied on against them. The prevailing principle in that case is, that the heir shall not have Ihe estate discharged from the purchase-money to the disappointment of a legatee." The counsel for the defendant observed, " that there was no decision against the dictum of Lord Hardwicke." Mackreth v. Symmons, 1808, 15. Ves. S29, counsel for the defendant say, " As to this defendant, if from the passage appearing in the report of Pollexfen v. Moore, it is supposed that the lien cannot be extended to a purchaser from the original vendee, it would be perfectly ineffectual ; but that proposition is contradicted by many authorities." The next case is Coppin v. Coppin, where the doctrine of Pollexfen v. Moore as to marshalling, was practically, though I donbt whether it ought to have been, admitted. In Pollexfen v. Moore, Lord Hard- wicke affirms the lieu of the vendor upon the estate for the remainder of the pur- chase-money ; considering the vendee from the time of the agreement a trustee as to the money for the vendor; but adds, " that this equity will not extend to a third person." If that is to be understood, (hat this equity would not extend to a third person, who had notice that the money was not paid, Lord Hardwicke's subsequent decisions contradict that: if the meaning is that he would follow the case of Coppin V. Coppin, and that if the vendor exhausted the personal assets, the legatee of the purchaser should not come upon the estate, there is groat difficulty in applying the principle ; as it would then be in the power of the vendor to administer the assets as lie pleases : having a lien upon the real estate, to exhaust the personal assets, and disappoint all the creditors, who, if he had resorted to Lis lien, would have been satisfied ; and in that respect with reference to tlie principle the case is anomalous. 88 equitable JLien avail themselves of the vendor's lien upon the estate con- tracted to be sold, {s) (s) Austen v. Halsey, 1801, 6. Ves. 478. The point was not decided as, although the personal estate was deficient, the savings of the rents and profits were enough to supply the deficiency. The following are the observations which were made upon the subject.— Mansfield and Hall for plaintiff. " Upon the other question, there is a great difference in marshalling against an estate descended and an estate devised. This is the case of an estate descended. A devise can operate only upon the estates the tes- tator actually has at the date of the will ; and in this instance the testator according to the words of the statute, had not the land either by a legal or an equitable title. In Langford v. Pitt it was decided, that an estate contracted for after the date of the will cannot pass by the will. Then, where one party has a right to resort to two funds, and the other has one only, tlie court marshalls ; making an arrangement, that will provide for tiie payment of every claimant. The vendor of this estate had a right in equity to resort to the estate sold for tlie payment of his purchase-money. If any difference arises from taking a security for his money, none was taken in this case. That the vendor has such right is proved by Chapman v. Tanner ; and even the cir- cumstance of taking a security has been held not to destroy the right. Lord Hard- wicke did the same thing in effect in Pollexfen v. Moore, a perplexed case ; and in Walker v. Preswick, the case of a ship, his lordship lays down the same doctrine as to land, which is followed by Lord Loughborough in Blackburn v. Gregson ; where bonds were taken, acid part of the money was paid. At the death of this testator no part of the purchase-money was paid ; and no security whatsoever was taken. Un- less a republication took place after the contract, the will could not dispose of this estate. Therefore this is a descended estate ; and the claim of marshalling is made against tiie heir. If there is a right to resort to two funds, there is no difference, by what title, whether legal or equitable ; and there are cases of legacies charged upon land, which being paid out of the personal estate, gave the common legatees a right upon the real estate.— Roniilly and Newbolt for the son. " The other, question is the only one of any difficulty. It is said, this is a case of marshalling against an heir, because the contract for the purchase of this estate was made after the will ; but can there be a doubt, that the codicil directing his executors to apply his personal estate in that purchase, and to settle the purchased estate upon his heir at law is a disposition to take effect ? A testator may direct that a thing may be pur- chased and given to a legatee : as in all cases, where a legacy is said to be of quantity, and not specific. So he may direct stock to be purchased. This must therefore be considered marshalling against a devisee; and it is settled by many decisions, that there can be no marshalling, as between a legatee and a specific devisee : Clifton v. Burt. Forrester v. Lord Leigh, Both are equally objects of bounty. This testator has expressly directed his personal estate to be applied in purchasing this real estate, to be settled on his son. I do not know that the doctrine of marshalling has ever been applied against an heir in a case of this kind. There is a material distinction between the common cases of marshalling by the equity of this court and a case of ^his species: the testator looking forward to his situation as purchaser of this estate, It has been decided, that if a testator, after making his will, contract by writing not under seal for the purchase of a real estate, and the purchase-money is, after his death, paid out of the money produced by the sale of the testator's real estate, the heir is not entitled to be re- imbursed out of the personal estate, {t) § 2. LIEN OF VENDEE. When money is paid prematurely by the purchaser, he has a lien on the estate for the amount. (7z) and directing the application between those who are to take. Pollexfen v. Moore is a very complicated case, and difficult to follow ; but Lord Hardwicke seems to say, that equity subsists only between the rendor and vendee, and does not extend to a third person. The decision does not quite agree with that. The disnppointnient of a legatee is a case that always happens where there is a disposition of property with- out ascertaining what it is. It is impossible for the court to go upon such a ground." — Lord Cliancellor. " Upon the next question, whether, supposing the legacies are not charged upon the real estate, this purchased estate may by circuity be made an- swerable to the legacies. Pollexfen v. Moore is the only case cited ; but without that authority, I consider it clearly settled that the vendor has a lien for the purchase- money, while the estate is in the hands of the vendee ; I except the case, where upon the contract evidently that lien by implication was not intended to be reserved. That is in equity very like a charge ; and the cases of marshalling seem to have gone this length, that where there is a charge upon an estate descended, a legatee shall stand in the place of the person having that charge, resorting to the personal estate ; and I do not think a power to apply the personal estate, which is all that is given by this codicil^ amounts to a command, leaving no discretion to the trustees. There is a difficulty here, from the circumstance that the estate purchased has not descended, but is devised ; and there is a difference in marshalling as to that. Jn this instance it is devised to the heir, with many remainders over. It may be found difficult for the legatees, by means of this circuity to find a fund for payment. But I shall give no opinion upon that ; for the savings being sufficient, with the bulk of the personal estate, to pay the legacies according to tiie true meaning of this will, those savings are the fund." — Sugden, 403, says, " It is clear that the inclination of the Chancel- lor's ophiion was in favor of the legatee under the general rule." (0 Trimmer v. Baync, 9. Ves. 211. See some observations upon this decision in Sngden, page -iOS. (n) Burgess v. Wheate, 1. Black. 123, cited by Lord Eldon in Mackrcth v. Sjni inons, 15. Vcs. 115. 90 equitable ILien CHAPTER ir. OBquitable Eten bp Oeposit of ^tm. If a lease be deposited as security for a debt, the pledgee has an equitable lien upon it, and may prove by parol evidence, the purpose for which it is deposited, {a) An equitable lien upon copyhold may be created by deposit of the copies of court-roll, {b) An equitable lien may be given upon a lease contain- ing a covenant against alienation, (c) Equitable liens seem to be contrary to the clear inten- tion and words of an act of parliament, but are adopted, although not favoured by courts of equity, [d) The questions upon this subject are thus divisible: ] . Delivery of only part of the deeds. { 2. Delivery of the deeds to a third person. } 3. Delivery of the deeds for a particular purpose. ^4. As to the lien extending to future debts. (a) Russel v. Russel, 1. Bro. 269. Featherstone v. Fenvrick and Harford v. Car- penter, ibid. Ex parte Coming, 9. Ves. 115. Ex parte Wetherall, 11. Ves. 398. Ex parte Haigh, 11. Ves. 403. Ex parte Finden, 11. Ves. 404. Norris v. Wilkin- son, 12. Ves. 192. Hearn v. Mill, 13. Ves. 114. Ex parte Mountfort, 14. Ves. 606. Ex parte Warner, I.Rose, 286. Ex parte Langston, 17. Ves. 200. (b) Ex parte Warner, 1. Rose, 286. (c) Ex parte Baglehole, 1. Rose, 432. Doe v. Bevan, 3. Maiile and Selw. 353. (d) See Russell v. Russell, 1783, 1. Bro. 269, Featherstone v. Fenwick, May, 1784, Harford v. Carpenter, April 18, 1785. Ex parte Haigh, 1805, 11. Ves. 403. Ex parte Finden, 11. Ves. 404. Morris v. Wilkinson, 12. Ves. 196. Ex parte Mountfort, 1808, 14. Ves. 66. Ex parte Coombe, 1809, 17. Ves. 370. Ex parte Wliitbread, 1812, I.Rose, i;98. Ex parte Warner, 1812, 1. Rose, 286. Ex parte Hooper, 1. Merivale, 7, 2. Rose, 239. Ijp trepasit of DeetJS. 91 DELIVERY OF ONLY PART OF THE DEEDS. If by indenture, a firm agree to give to tlieir bankers furtiier security for a sum due and for further advances, and covenant that certain premises, mentioned in the schedule, shall be a security accordingly; and some secu- rities belonging to the firm are assigned; and upon the balance being increased, the bankers applj'- for further security, and the firm agree to deposit the title-deeds of an estate which is specified, and a bundle of papers is sent to the bankers, and represented to be the title-deeds of that estate, which the bankers accept without examin- ing them; and one of the bankers in conversation ex- press his wish to have a regular mortgage of the estate, stating that the title-deeds are in his hands, to which one of the debtors consents; and the other, upon communica- tion to him, say *' it is unreasonable, that there is security enough;" and there is a memorandum, written by one of the debtors, entitled " a schedule of the annual value of the property of the debtors, given in security," in which the estate in question is the first article; and, after the bankruptcy of the debtors, it is discovered that the deeds, deposited as the title-deeds of the whole estate, re- late only to a moiety of the estate, and bring the title down only to a distant period, and that the bankrupts retained the other deeds, which are in the possession of the assignees, the creditors are entitled to a security upon the whole estate, (f) It has never yet been settled how far it is necessary to deliver all the title-deeds, or whether that would not be (/) Ex parte Wetlicrcll, 11. Ves. J. 403. This is decided upon the ground, that under all the circumstances of the c;i.';c, there was sufficient evidence in writing to raise llic equitable mortgage. See Hales v. Vanderchem, 2. Vcrn. I(i7. m equitable XLien taken to be a sufficient deposit, which could be taken, upon looking at the instruments, to amount to evidence that the estate was a security, (g) If a debtor agree to secure the payment of his debt by a mortgage, and all the title-deeds are sent to the creditor who is an attorney, to enable him to prepare the mort- gage except the immediate conveyance to the trader in fee ; and if the trader, being indebted to another person, deposit with him such immediate conveyance as a secu- rity, and promise to send him the title deeds, the credi- tors cannot, upon the bankruptcy of the trader, unite so as to make a good title, [h) It is said to have been ruled that in an action of inde- bitatus assumpsit a court of law will consider a deposit of title-deeds to create a lien, (i) DELIVERY OF DEEDS TO A THIRD PERSON FOR THE CREDITOR. If a person lend a sum of money, upon condition that the borrower shall mal^e a security by way of mortgage, to replace the stock within twelve months, and to pay the dividends in the mean time; and in pursuance of this agreement, the borrower deposit title-deeds with his wife, who places them in a trunk, of which she keeps the key, until her husband become bankrupt, the creditor has not any lien, {k) It seems that such lien may be raised by a deposit in (g) See note (/), page 91. (A) Ex parte Pearse, in the matter of Price, 7. Buck, 525. (i) Richards v. Borrett, 1800, 3. Espinasse, 102. (App. 39.) where Lord KenyoH said, it had been held in equity, that depositing all, or even part of the deeds re- specting real property, implied an intention of charging the real estates, and gave the party a lien upon them ; and that as this was an equitable action, he would hold the same doctrine." (k) Ex parte Coming, 9. Ves. J. 115. bj) nepasit of Deetis. 9^ the hands of a person, who can fairly be called a third person, abstracted from both, {g) It has been doubted whether a mere memorandum, kept in the possession of the person who made it, and not parted with to the creditor in whose favor it is expressed, will take it out of the statute, {g) The doctrine of equitable lien is not to be extended to advances made to a person with whom the lease is not deposited, where the person with whom it is deposited is himself a creditor, [h] If two persons advance separate sums upon a lease, which is deposited with him who advances the largest sum, and the debtor become bankrupt, the creditor for the smaller sum has not a lien, {h) If an application be made to an equitable mortgagee by a deposit of a deed for a further loan to enable him to procure from the lessor an extension of the term of the lease, upon a parol promise that such lease when granted shall be deposited with the equitable mortgagee for the sum advanced ; and that, when the lease is executed, it shall be delivered by the solicitor of the lessor to the equi- table mortgagee j and the lease is executed, and remains in the hands of the lessor's solicitor, the equitable mort- gagee has not a lien upon it. [i) DELIVERY OF DEEDS FOR A PARTICULAR PURPOSE. An equitable mortgage is created by the delivery of deeds to prepare a legal mortgage, [k] (g) Ex parte Coming, 9. Ves. J. 115. (A) Ex parte Whitbread, 1. Rose, 299. In this case the Chancellor says, " I be- lieve Temple to be morally entitled to this interest ; bnt how can I extend a doctrine opening to so much uncertainty? However hard it may be in an individual caie, it is better upon principles of public utility to say, that those who wish to render such securities valid, have only to require a short memorandum in writing." (i) Ex parte Coomb, 4. Mad. 250. (k) Ex parte Bruce, 1 . Rose, 374. 94 equitable Hien. If a debtor undertake to execute a mortgage, when a mortgage is duly prepared, and deeds are delivered as a step towards its preparation, the person to whom the deeds are delivered has not any lien upon them. (/) If deeds are deposited to secure an annuity which is void for non-compliance with the annuity-act, doubt seems to have been entertained whether the grantee has any lien upon the deeds, (m) AS TO THE LIEN EXTENDING TO FUTURE DEBTS. If a trader deposit a lease as a security for a debt to be contracted by him, it is not a security for a debt after- wards contracted by the debtor and another. {?i) If the evidence is contradictory, whether the deposit is for a debt due at the time of the deposit, or to extend to debts to become due, the court will inquire as to the ex- tent of the deposit, (o) (/) Nonis V. Wilkinson, 12. Ves. J. 199. (m) Ex parte Wright, 1. Rose, 308. (n) Ex parte Anderson, August 2, 180^. (o) Ex parte Mountfort, 1808, 14. Ves. 606. 95 Cases omitteTi. If a ship is captured, and the master and part of the crew are taken into the enemy's port, and the ship is re- captured and delivered to the owner, the master does not lose his lien, [a) If the owner of a ship let her for a voyage, and the freighter covenant to put on board a complete cargo, and that the freight and primage shall be paid, part in cash, and the remainder in good and approved bills, payable two months after date, from the day on which the deli- very is completed; the delivery of the goods and the payment of the freight are concomitant acts; and the owner has a lien upon the cargo till the bills are actually delivered, [b) If the purchaser give in payment his drafts at different dates, some of which are dishonoured, it does not divest the vendor of his lien, (c) A London agent has a lien against the client of his country solicitor upon the papers entrusted by the client to the country solicitor, and by the country solicitor to (a) Ex parte Cheeseman, in re Welfitt, March 31, 1763, 2. Eden, 181. Tlie ques- tion upon this petition arose upon a claim by the master of a vessel to his lien upon the freight. Tiie sijip iiad been captured, and he, with several of the crew sent into the enemy's port. The ship was afterwards recaptured. — Lord Chancellor. " The master's right is founded on the principle of the specific lien of innkeeper, taylor, carrier, &c. extended by courts of equity to all cases of possession. He has a specific lien on the ship and cargo. His being taken, and by that means out of possession, can make no difference. The owner received the ship on her arrival, after the recap- ture, loco magistri, and as trustee for the master. If he had voluntarily quitted pos- session of the ship, that would indeed have made a difference," See ante, page 9. (0) Tate V. Meek, 2. Moore, S!78. Yates v. Railston, 2. Moore, 294. Vatcs v. Mennell, 2. Moore, 297. See ante, page 48. (c) Ex parte Peake, 1816, 1. Mad, S48. See ante, note Or), page 79. 96 Cases omitteti* I he agent, for the debt due from the client to the country .•;?olicitor. [d) A London agent has, as it seems, a general lien against a country solicitor upon all the papers with which he is entrusted by the coiintry solicitor, {d) LIEN AGAINST THE CROWN. (e) If goods be delivered to a factor for sale, and the factor accept bills for the principal upon the credit of such goods, and an extent is issued against the principal^ and the goods in the factor's hands are seized by the sheriff, the factor has a lien upon the purchase-money against the crown. (/) (d) Bray, &c. v. Hine and Fox, 6. Price, 203. See ante, page 60. (e) This should have been a separate head in page 75. (f) Rex V. Lee and others, 6. Price, 369. See Rex v. Sanderson, 1. Wight, 50. APPENDIX OF CASES. Hostler's Case, 1605, Yelverton, 66. — Popham C. J. says, If a man bring an lior?e to an inn, and he leave him in ihe stable, without any special agreement to pay, the innkeeper is not bound to deliver the horse until the owner has paid his charges, but is justified in detainint' him for his food and keeping : and when the horse has eaten as much as he is worth, the innkeeper, at a fair valu- ation may sell him, and the sale will be good at law. But in this case, though the horse had eatcu double his value, the innkeeper could not sell him ; for he had agreed for the rate of sixpence per day and iiight, and must abide by his agreement. So where a tailor has any clothes to make, and he make them accordingly, he is not bound to deliver them till he is paid for the making of them. But though he may detain ihem till paid for, yet he cannot sell them in default of payment. And the reason is this: that the keeping of the ht)ri>e is attended with expense, but the keeping of the clothes is not. Mores v. Conham, 1609, Owen, 123. — Foster, J. He that hath the pawne hath not such an interest in it a*- B APPENDIX. he may deliver It over to another, or make a legall contract for it, and that his delivery being illegall, he cannot by his own wrong raise an action to himself, and a man shall never maintain any action, where the consideration is ille- gall and not valuable. Cook, TVaibiuton, and Daniell contra, He who hath goods at pawn hath a speciall pro- perty in them, so that he may work such pawn, if it be a horse or oxe, or may take the cowes milk, and may use it in such manner as the owner would : but if he misuseth the pawn, an action lyes: also he hath such interest in the pawn as he may assign over, and the assignee shall be sub- ject to a detinue, if he obtains it upon payment of the mo- ney by the owner, as in the 2. assise. Land was leased until he had raised 100/. he hath such interest as is grant- able over. And Foster agreed to this, because it was agreed by Cook and Warburtori, that when a man hath a speciall interest in a thing by act in law, that he cannot work it, or otherwise use it : but contrary upon a speciall interest by the act of the partie as in case of a pawn. — — DanielL There is difference between pawns, which are chargeable to the parties as cowes and horses, and things that are not chargeable, and also there is a difference be- tween pawnes that will be the worse by usage, as clothes, &c. For if the pawn be the worse by usage, an action of the case will lie against him that hath them pawned to him : but contra of goods that are not the worse for usage. And judgment was given for the plaintiff, and that they may be granted over. Moss 1). TOWNSEND, l6l2, 1. BULSTR. 20?.— Thfe custome of London as to innekeepers is this. If one brings a horse to an inne, leaves him there, and goes his way, and the horse eats up more than his price, by the custome of London, the innekeeper may sell this horse to pay himself, (but not if the debt was for other horses). APPENDIX. Robinson v. Walter, i6i6, 3. Bulstr. 'i69. — Trover. Defendant's plea in bar, was this, the defendant keeping a common inne, a stianger brings the plaintiff's horse into this common inne of the defendant's, there sets him for some time, and afterwards goes his way, leaving the plaintiff's horse there as a pledge for his meat. The plaintiffe demurred. Montague, Chief Justice. The custome of Loudon is good and reasonable, how long to stay, not till he eats out more then his head ; the innholder may sell him presently, and this is justifiable. The opi- nion of the court was against the plaintiffe, that the de- murrer was not good. Chapman v. Allen, l6S2, Cue Car. 271.— An innkeeper or taylor may retain the horse or garment deli- A vered them until they be satisfied ; but not, when one re- ceives horses or kine or other cattel to pasturage, paying for them a weekly summe, unless there be such an agree- ment betwixt them. Chapwan v. Derby, 1689, 2. Vern. 1 J7. — The plaintiff, a factor, advanced money to his principal, relying on the credit of the cloaths. The clothier died, the admi- nistrator sues at law for the cloth, the factor in equity prays he may on account be allowed the monies he ad- vanced.- Per Cur. non allocat\ for if there be debts of a higher nature, it will be a devastavit in the administrator, to pay or discount the plaintiff's debt. York v. Grindstone, 1G99, 1. Salk. 388.-—Tlie court held, that innkeepers were bound to receive and en- tertain guests, and therefore might detain the goods of guests till payment ; but the Chief Justice doubted whe- ther the plaintiff" was a guest, because he never went into the inn himself, but only left his horse there, which the B 2 4 APPENDIX. innkeeper was not obliged to receive. Poivell, Powys, and Gould contra, that the plaintiff is a guest by leaving his horse, as much as if he had stayed himself; because the horse must be fed, by which the innkeeper has gain; otherwise, if he had left a trunk or a dead thing. Hartfort v. Jones, 1699, Lord Raymond, 393. — Trover for goods. The defendant pleads, that they were in a ship, and that the ship took fire, and that they hazarded their lives to save them ; and therefore they are ready to deliver the goods, if the plaintiff would pay them 4/. for salvage, Sec. The plaintiff demurred generally. And Holt Chief Justice held, that they might retain the goods until payment, as well as a tailor, or an hostler, or a common carrier. Anon. 1700, 12. Mod. Rep. 447.-— Holt, Chief Justice. Every master of a ship may detain goods till he be paid for them ; that is, for their freight. Skinner v. Upshaw, 1701, Lord Raymond, 752. — It was ruled by Holt Chief Justice that a carrier may retain the goods for his hire. YoRKE V. Grenaucjh, 1702, Lord Raymond, 866. — Replevin of a gelding. The defendant avows, for that the said inn, &c. ; and that he being a common inn- keeper, &c. Stable, corn, hay, &c. for the said gelding, invenit ibidem, &c. ; and that he was not paid, neither by the traveller, nor by the plaintiff, nor by any other. The plaintiff pleads in bar of this avowry, that the defendant adtunc nee ad aliquod tempiis postea demanded of the plaintiff any sum for maintaining this gelding. Demurrer. And it was held by all, that the plea in bar was ill ; for the innkeeper may detain for the meat, &c. of the horse, APPENDIX. O without making a demand. Per Curiam. Supposing that this traveller was a robber, and had stolen this horse ; yet if he comes to an inn, and is a guest there, and delivers the horse to the innkeeper, (who does not know it) the inn- keeper is obliged to accept the horse ; and then it is very reasonable that he shall have a remedy for payment, which is by retainer. And he is not obliged to consider who is owner of the horse, but whether he who brings him is his guest or not. And Holt Chief Justice cited the case of the Exeter carrier; where A stole goods, and delivered them to the Exeter carrier, to be carried to Exeter, the right owner finding the goods in possession of the carrier, demanded them of him, upon which the carrier refused to deliver, without being paid for the carriage. The owner brought trover; and it was held, that he might justify de- taining against the right owner for the carriage ; for when ji brought them to him, he was obliged to receive them and carry them ; and therefore since the law compelled him to carry them, it will give him remedy for the pre- mium due for the carriage. Tlie same reason holds in this case. [But Fozcdl Justice said, that a carrier could not detain for his carriage ; but note, the contrary has al- ways been held by Holt Chief Justice at Guildhall.'] If a man set his horse at an inn, though he lodge in another place, that makes him a guest, and the innkeeper is obliged to receive him ; for the innkeeper gains by the horse, and therefore that makes the owner a guest, though he was ab- sent. Contra of goods left there by a man, because the innkeeper has no advantage by them. Baldwinzj.Cole, 1704, G. Mod. Rep. 212. — Trover. A carpenter sent his servant to work for hire to the queen's yard ; and having been there some time, when he would go no more, the surveyor of the work would not let him. () APPENDIX. have his tools, pretending a usage to detain tools to enforce workmen to continue until the queen's work was done. Defendant was found guiltj/. Jones v. Pearle, 1722, 1. Strange, 556. — In trover for three horses, the defendant pleaded, that he kept a public inn at Glastonbury, and that the plaintiff was a carrier and used to set up his horses there ; and S6/. being due to him for the Eeeping the horses, which was more than they were worth, he detained and sold them, proiit ei bene Ucuit: and on demurrer judgment was given for the plaintiff, an innkeeper having no power to sell horses, ex- cept within the city of London. 2. lio/L Abr. 85. 1. Ven. 71. Mo. 876. Yd. 67. And besides, when the horses had been once out, the power of detaining them for what was due before did not subsist at their coming in again. .Jones c.Thurloe, 1722, 8. Mod. Rep. 171. — The court was of opinion, that if a man lie in an inn one night, the innkeeper may detain his horses until he is paid for the expenses ; but if he give him credit for that time, and let him depart without payment, then he has waived the bene- fit of that custom by his own consent to the departure, and shall never aftervvaids detain the horse for that expense. The Chief Justice, in the argument of this case, held, that though the innkeeper might detain a horse for his meat for one night, yet he could not sell the horse and pay him- self. Lawson n. Dickenson, 1724, 8. Mod. Rep. 307, — The plainiifF had an estate mortgaged to him, and the defendant, who was an attornei/y and who drew the mort- gage, did by that means get all the deeds relating to the APPENDIX. 7 title into his possession. Upon a motion for a rule to deliver the deeds to the plaintiff, for that he (the defendant) made the mortgage, and therefore shall not be allowed any money due to him from the mortgagor, before or after the mortgage, but that he should deliver up the deeds upon payment of what is due for drawing and engrossing it. The court was of opinion, that an attorney may detain pa- pers until the money is paid for drawing them ; but that he cannot detain any writings v\hich are delivered to him on a special trust, for the money due to him in that very business ; therefore a rule w as made for the defendant to deliver those deeds to the plaintiff. Stone v. Lingwood, 1725, 1. Strange, 651. — The plaintiff was captain of a ship, and the defendant ow ner : the plaintiff' brought over a small parcel of ele- phants' teeth on his o^wn account, and a large parcel for the defendant, who entered the whole at the Custom-house, paid the duty, and had the whole delivered out to him ; and not re-delivering to the captain his parcel, an action of trover was brought. And it was insisted for the defen- dant, that the plaintiff should shew a tender of the duty, otherwise the goods were in the nature of a pledge, and he was not bound to deliver them : but the Chief Justice said, that would not justify the defendant in keeping them, for he had his action for the money ; and if he would shew what the duty came to, it might be deducted in damages. Which was done accorduigly. Farewell v. Coker, 1728, 2. P. Williams, 460. — Farewell employed Bower as his solicitor, Bower em- ployed Edwards as his clerk in court. Farewell paid Bower. Edwards continued unpaid. Lord Cliancellor. If the country client pays his principal, who is the country ^ APPENDIX. attorney or solicitor, he is thereby discharged, and must not pay the same debt twice. All I can do for the clerk in court is, to take no paper out of his hands till paid ; and if any thing be remaining due in Mr. Farewell's (the coun- try client) hands, 1 will stop it, and the same shall be paid to Edwards the clerk in court. Ex PARTE Bush, 1734, 7- Vin. 74. — Lord Chan- cellor. — ^The attorney hath a lien upon the papers in the same manner against assignees as against the bankrupt, and though it doth not arise by any express contract or agree- ment, yet it is as effectual, being an implied contract by law ; but as to papers received after the bankruptcy they cannot be retained. Gray v. Cockeril, 1740, 2. Atkyns, 113. — A clerk in court's lending a solicitor money to carry on a cause shall never entitle the clerk in court to detain the papers of the client as a pledge or mortgage for the money so advanced to the solicitor, but he shall deliver them up to the party, and get his money from the solicitor the best way he can. ' Hartop v. Hoare, 1742, 3. Atkyns, 43. — Judg- ment in this case was given for the plainiifF. The plaintiff being owner of the jewels, lodged them with other jewels for safe custody only in the hands of James Seamer, jeweller and banker, inclosed in a paper, which paper was sealed, and put in a bag, which was also sealed with the plaintiff's seal, and deposited them at Seamer s house in Fleet Street, London, and took a receipt for them. Seamer broke both the seals, and took out the jewels, and carried them to the defendant's shop, which is a public open shop in Fleet Street in the city of London, where APPEN'nlX. 9 the defendants carried on the business of bankers, and also traded in jewels, and frequently lent money on the security of jewels, and then and there the said James Seamer bor- rowed the sum of 300/. of the defendant, and deposited the jewels in the declaration mentioned, as his own proper goods, and as a security for the said sum of 300/. The general question is, Whether Sir John Hartop the plaiuiifF, and owner of these goods, is barred from having the goods delivered to him? Seamer had no kind of property either general or special ; he came to the possession of the jewels by right originally, but when he broke the seal, and took the jewels out of the bag, and by that means enabled himself to deliver them openly to the defendants, he was possessor mala Jidei, and went to the defendants as such. The present case therefore is like the case in 1 . Inst. 89. where A. leaves a chest locked with Ji. and taketh away the key, there A. does not intrust B with the goods. Ex PARTE Deeze, 1748, 1. Atk. S28.— Nicholls, a merchant, borrowed of the petitioner 500/. for which he gave a note of hand ; afterwards he sent the petitioner, who was ^. packer, six bales of cloth to pack and press ; some time after NichoUs paid off a part of the 500/. and interest for the remainder, and then asked the petitioner if he would have the whole paid off, which the petitioner de- clined, and then the old note was delivered up, and a new one given for the remainder: before the remainder was paid, and before the six bales were taken out of the peti- tioner's custody, Nicholls became a bankrupt. ^A peti- tion whether the petitioner could retain six bales till his whole debt was satisfied. — N. B. There were no goods in the hands of the petitioner, when he first lent the money, nor had there been dealirigs between them for many years. In the petition ex-parte Deeze, the 8lh of June, 1748, before me there was evidence, that it is usual for packers 10 APPENDIX. to lend money to clothiers, and the cloths to be a pledge, not only for the work done in packing, but for the loan of money likewise, It also appeared there was at the time of the bankruptcy I9l- due to Deeze for the packing and pressing these bales, and there was due from Deeze to Nicholls near that sum for wine. Lord Chancellor. I am of opinion, that under the circumstances of the present case, the assignees have not a right to take those goods from the petitioner, without making him a satisfaction for his whole debt. — — The question then will be. Whether there is any specific lien on those goods in the petitioner's hands, either by express contract, or from the nature of the dealing? if not, whether there is any mutual credit and account? To be sure packers may retain goods till they are paid the price and labour of packing, and so other trades may retain in the like manner ; therefore these goods were in the petitioner's hands in the nature of a pledge for some part of his debt, that is, the price of the packing ; and wliat right has a court of equity to say, that if he has another debt due to him from the same person, that the goods shall be taken from him without having the whole paid ? In the case of Demaindray v. Metcalfe, before Lord Cowper, ^2. Vern. 69 1, he said, he looked upon it as an account current between the pawner and pawnee : the pre- sent case I think is stronger ; for here the goods are un- doubtedly a pledge in the petitioner's hands for part of his debt. It is very hard to say mutual credit should be confined to pecuniary demands, and that if a man has goods in his hands, belonging to a debtor of his, which cannot be got from him without an action at law, or bill in equity, that it should not be considered as mutual credit; and Lord Cowper's opinion plainly favours that construction, for he lo jked upon the jewels pawned, and notes given, as an account current between them. And here, though if there had beeji no bankruptcy, in an action for these goods, APPENDIX. il the debt could not have been set off; yet as the clause of mutual credit has been extended, I think it may come within that rule, especially as here is an account between them ; on the one side 1 9/. due for packing, &,c., on the other side much about the same sum due to the bankrupt's estate for wine. Ex PARTE OCKENDEN, 1754, I. AtKYNS, 234, — Mathews, a flour factor, employed the petitioner as his miller, who had considerable dealings with Mathews in grinding of corn for him, on which account he was gene- rally indebted to the petitioner in a large sum of money, who always had in his hands corn, meal, and sacks of Mathews, sometimes more, sometimes less, but for the most part sufficient to answer the sum due to the peti- tioner ; and for this reason the petitioner gave Mathews a much greater credit than he would otherwise have done. At the time Mathews became a bankrupt, he was in- debted to the petitioner in 286/. 7s. lOJ. for the grinding of corn, for which he gave two promissory notes of 100/. each, and which became due before the bankruptcy, and the peti- tioner at the same time had in his custody thirty- six loads and three bushels of wheat. There was likewise due to the petitioner l6/. 5s. for grinding of corn, which was in his hands at the time Mathews became bankrupt, making in the whole 302/. 12s. \0d. Lord Chancellor. It lies upon the petitioner to shew he has any lien upon the corn, &c. in his hands; and as to the specific lien which he claims, I do not see there is a sufficient reason to consider it as such. In this case no evidence has been produced of any contract, that the debt which was owing to the pe- titioner should be a lien on the corn, &c. Nor is there any evidence, that there is any general custom with respect to millers that it should be a lien. There is then no specific lien, but what arises from that kind of bailment at 1^ APPENDIX. law, proceeding from a delivery of goods for a particular purpose, as in the case of a horse standing in the stable of an innkeeper, or cloth in the hands of a tailor, who have each of them a special property. The case of Demain- dray v. Metcalfe, Prec. in Chan. 419, was a sum bor- rowed first on the pawn of jewels, and afterwards three more several sums borrowed, for each of which the pawner gave his note, without taking notice of the jewels ; it was determined that the executors of the borrower should not redeem the jewels, without paying the money due on the notes : there it must have been presumed the ground and foundation of the pawnee's lending the money, was his having a pledge in his hands, and there is no pretence to say, it would have been a lien, if the money had been lent before the delivery of the goods, and it therefore turned upon its being a subsequent transaction. The case of Downman v. Mathewa and others, Prec. in Chan. 580, appears to be a transaction between a clothier and a dyer, and there was evidence that they always made up their ac- counts by giving mutual credit, the dyer on one hand for work done, and on the other hand, the clothier for his cloth. In the petition ex parte Deeze, the 8th of June, 1748, before me there was evidence, that it is usual for packers to lend money to clothiers, and the cloths to be a pledge not only for the work done in packing, but for the loan of money likewise. It must come then to the question upon the clause in the act of parliament relating to mutual credit ; and I own 1 am extremely doubtful as to that. Ex PARTE Shank, 1754, 1. Atkyns, 234. — A per- son who had repaired a ship insisted he had a specific lien on the ship for the repairs. After the ship had been so repaired, the workman delivered it to the bankrupt who employed him, and therefore Lord Chancellor was of APPENDIX. 13 opinion he had no pretence, under the general law of the realm, to retain till he is paid ; because it is out of his pos- session : and though the law of Holland gives a person M'ho repairs a house or ship a specific lien, there is no such law in England. If the ship had been repaired in a foreign port, while out upon a voyage, it would have been otherwise. Brenan v. CuRRiNT, 1755, Sayer, 2*24. — Agree- ment was entered into by plaintiff and the defendant, whereby the sum of ten shillings and sixpence was to be paid to the defendant, a farrier, for curing the plaintiff's mare of a distemper, and likewise a reasonable sum of money for keeping the mare, until she should be cured ; the plaintiff tendered ten shillings and sixpence, and de- manded the mare ; the defendant refused to deliver the mare, unless the plaintiff would pay a gross sum of money for the cure and keeping of the mare. Ryder, Ch. J. — It has been said, that a farrier has a right to detain a beast delivered to him to be cured, until the money due for keeping the beast is paid or tendered : but it is not necessary to give any opinion upon this point ; for although we should be of opinion, that a farrier has, in the general, such a right : yet it would be clear, that the defendant had not in the present case a right to detain the mare ; because his general right to do this, in case he had such a right, was waved by the special agreement, that a reasonable sum of money was to be paid to him for keeping the mare, until she should be cured. Ex PARTE Emery, 1755, 2. Vesey, 674.— On a commission of bankruptcy the claim of the petitioners was, as they acted as factors for the purchase of goods, paid the whole money, and drew a bill of exchange, whi<;h was protested. Lord Chancellor. In such case the 14 APPENDIX. court has followed the specific effects in case of a factor or partnership to obtain compleat justice; and even where a note is taken by the bankrupt for the money, they fol- lowed that note ; as was determined in C. B. in case of a sale by a factor, and no partnership, who laid out his money in purchase of goods ; sent them to his corres- pondent in England, and drew a bill of exchange ; the goods have come to the hands of the correspondent here, who has broke ; the bill of exchange sent back protested, and the goods here at the time. It has been held to be a specific lien on those goods, and not suffered to go for other debts until the price for them was paid. That held in several cases, and lately by me in Kruger v. Wilcox. Let it be directed therefore according to the prayer of the petition. Kruger v. Wilcox, 1755, Ambler, 252. — This cause coming on for further directions, the case was : Mico was general agent in England for Watkins, who was a merchant abroad, and at different times had received considerable consignments of goods, and upon the balance of account was in disburse. Afterwards TVatkins consigned to him a parcel of logwood, for which he paid the charges, &c. Watkins coming to England, Mico said, as he was here, he might dispose of the goods himself: Watkins ac- cordingly employs a broker to sell them, and Mico tells the broker, that Watkins intends to sell them himself, to save commission ; and Mico gave orders to the warehouse- man, to deliver the goods to that broker. The broker sells them, and makes out bills of parcels to Watkins; and opens an account with Watkins, but takes no notice of Mico. After the goods were sold, Mico begins to sus- pect Watkins s circumstances, and resorts to the broker, to know whether he has opened an account with Watkins. ..... . The great question in the cause was, supposing Mico APPENDIX. 15 had a lien on these goods and produce, so as to be entitled to retain them fur the balance of the account ; whether he has not parted with that light? Lord Ilarduiike. Two things are to be considered: — 1st, What hen a factor gains on goods consigned to him by a merchant abroad ? and whether Mico gained such lien in this case ? 2nd, If he did, whether he has done any thing to part with it ? As to ist. All the four merchants, both in their exa- mination in the cause, and now in court, agree, that if there is a course of dealings and general account between the merchant and factor, and a balance is due to the fac- tor, he may retain the ship and goods, or produce, for such balance of the general account, as well as for the charges, customs, &,c. paid on the account of the particular cargo, lliey consider it as an interest in the specific things, and make them articles in the general account. Whether this was ever allowed in trover at law, where the goods were turned into money, 1 cannot say ; nor can I find any such case. 1 have no doubt, it would be so in this court, if the goods remained in specie ; nor do 1 doubt of its being so, where they are turned into money. To 2nd question, I am of opinion, Mico has parted with his right, and that it is for the benefit of trade to say he has. All the merchants agree, that akhough a factor may retain for the balance of an account, yet if the merchant comes over, and the factor delivers the goods up to him, by his parting with the possession he parts with the specific lien. Such is the law of the land as to retainers in other cases. Question. Whether this case amounts to the de- livery up of the logwood to the principal ? 1 think it does. Mico suffers Watkim to employ a broker; and tells the broker, that Watkins intends to sell them himself, to save commission. Mico gives orders to the warehouseman to deliver the goods to the broker. The broker sells then), l6 APPENDIX. and makes out bills of parcels to Watkins, and takes no notice of Mico. It amounts to the same thing, as if Mico had delivered the goods in specie to Watkins. It is safer for trade to hold it in this manner, than otherwise ; for by that manner of acting, Mico gave Watkins a credit with other people (for the sale was public, and by that the goods appeared to be Watkins's), which would not have been the case, if Mico had retained for the balance of his account. It is better to allow that which is the public notorious transaction, than that which is secret. Suppose an action had been brought by Watkins against the broker, for money had and received, the broker could not have defended himself by saying, So much is due to Mico. The merchants have admitted, that the specific lien as to the customs, charges, &c. does continue ; even the law would have allowed it, if the goods had remained in specie; the goods being sold, makes the case stronger. But that is not now before me, being determined by his late Honour the Master of the Rolls, and acquiesced in by the parties. Ex PARTE Andrews, 1764, Cooke, 460.— Tolfrey, a linen-draper, was indebted to Andrews, a calico-printer, for printing and other work done by him to divers parcels of cotton and linen for Tolfrey, and also for money paid and advanced to the collectors for the duty for part of the linens. At the time he became bankrupt, he was indebted to Andrews in 312/. 2s. Qd. Andrews had linens then in his hands which belonged to the bankrupt, and were deli- vered by him to Andrews to be printed, of the value of 107/. 14s. 3d. An.drews, on the contrary, contended, that he had a lien upon the linens in his possession, not only for the work done to them in particular, but also for former work done for the bankrupt of the like nature. APPENDIX. 17 Lord Northingfon ordered that Andrews should retain the value of the goods in his hands in part satisfaction of his debt, and that he should be at liberty to prove the residue under the bankrupt's estate. Green v. Farmer, 1768, 1. Blackstone, 651. — Trover. Verdict for the plaintiffs, on this special case. Messrs. Henzleman purchased from the plaintiffs the goods in question, by their packer, and they were delivered to the defendants their dyers, to be dyed on their (Messrs, Henzkmans) account. Afterwards, IMessrs. Hetiz/eman and the plaintiffs agreed, that the plaintiffs should have their goods back again ; who demanded them from the de- fendants, offering to pay what was due for the dyeing of them ; but the defendants insisted upon being also paid a debt, due from Messrs. Henzletnan, for dyeing other goods, over and above the price of dyeing these. The occasion of Messrs. Henz/emans agreeing, that the plain- tiffs should have their goods again, was their (the HenzU- mans) having failed in their circumstances; and it was proved, that after notice of this failure, the defendants had delivered back eleven pieces to Messrs. Aston and Hodg- son, which had, in like manner, been bought of them by Messrs. Henzleman % packer, and sent to the defendants to be dyed on Messrs. Flenzlemajis account, without insisting on being paid more than was due for dyeing the same ; and they had also delivered back to the plaintiffs five pieces in white, without any thing being paid for them. 2u. Whe- ther, under these circumstances, the defendants have a hen upon these goods, for any thing more than the price of dyeing the same. Lord Mansfield delivered the opinion of the court. This case is the same, as if the action had been brought by Henzleman. Natural equity is certainly much in favour of liens; so that courts of justice have always leaned that way, as far as was consistent with p(»si- c 18 APPENDIJC. tive law. They will therefore imply a contract of lien, from the general course of trade, or from the nature of the particular mode of dealing between the parties. So where one has acted as a factor for another, every thing in his hands is construed to be a pledge. Two remarkable cases have been cited at the bar, ex-parte Deeze and ex- parte Ockenden ; both of them well reported by Atkyiis. If these two cases at all clash, the weight of authority is certainly more preponderant in the latter, which was more maturely considered. But I think them very consis- tent. A packer, according to the course of trade, is cer- tainly entitled to a lien upon all goods in his hands, being in the nature of a factor. Let me apply the principles of Ockenden' s case to the present. Here is no factor, no agent, concerned : no transaction, but the mere manufac- ture of dyeing : no course of trade or general usage, to create a specific lien : no particular circumstances of their method of dealing with Henzleman. The very manner of dealing shews, they relied merely on his personal credit. We are therefore all of opinion, that the defendants had no lien in the present case, but for the price of the dyeing of these specific goods. Drinkwateu t. Goodwin, 1775, Cowp. 251. — Action by the assignees of J. Dowding. J. Dowding, the bankrupt, was a clothier, and employed Jeffries, a fac- tor, who sold to Goodzcin. The money was paid by Goodwin to Jeffries, after notice to him from the assignees not to pay it to Jeffries. Lord Mansfield. The prin- cipal and factor enter into a special agreement, by which the factor undertakes and actually pledges his credit to raise money for the benefit of the principal : which money is to be worked up in cloths, and which cloths when so worked up the principal agrees to send to the factor. The agree- ment therefore is, that he shall have a lien. For he says, APPENDIX. 19 " be security for the money, and I will send you all the cloths." — What is the form in which the transaction is put? The factor knew very well that for a general balance of his accounts he had a lien, but he doubted whether such lien would extend to a case in which he was only surety for his principal, and therefore he says, " I am led by the course of the trade, to let the money be a joint bond, &,c." Therefore, we are all most clearly of opinion, that a factor has a lien on the price of goods in the hands of the buyer : and in this case, though he had not the actual pos- session of them ; yet as he had a power of giving a dis- charge, or bringing an action, he had 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. Bucks v. Bristead, 1777, 2. Black. 1171. — Tro- ver for a dog found at defendant's house. The defen- dant said the dog strayed there casually; and demanded 20s. for twenty weeks keep, before he would deliver it up. Postea for the plaintiff. WiLKiNs V. Carmichael, 1779, Doug. 97. — Tro- ver by the assignees of a bankrupt for a ship, of which the bankrupt was owner, against the captain. The defence set up was, that the captain had a lien on the ship for his wages, and for stores, provisions, and repairs. Verdict for the plaintiffs, subject to the opinion of the court. The defendant, the captain, bespoke and directed repairs to be done to the ship before she set out upon her last voyage, and directed her to be supplied with stores and provisions. The defendant likewise had wages due to him. Brooke, the owner, became a bankrupt, j^ftcr the bank- ruptcy and demand, the defendant paid the creditors their c 2 20 APPENDIX. bills for stores and repairs. Lord Mansfield. He has set up a lien upon two sorts of claim, viz. wages, and stores and repairs. As to wages, there was no particular contract that the ship should be a pledge ; there is no usage in trade to that purpose ; nor any implication from the nature of the dealing. On the contrary, the law l.as already considered the captain as contracting personally with the owner : on this ground, prohibitions have been granted ; and the case of the captain has in that respect been distinguished from that of all other persons belonging to the ship. As to stores and repairs, it is a strong answer to that claim, that when the demand was made by the as- signees, the captain had not paid. But if there was any lien originally, it was in the carpenter. The captain could not, by paying him, be in a better situation than his ; and he had parted with the possession ; so that he had given up his lien if he ever had one. The other creditors had none. If the defendant is liable to the tradesmen, it is by his own act. Work done for a ship in England is sup- posed to be on the personal credit of the employer. In foreign ports, the captain may hypothecate the ship. The defendant might have told the tradesmen that he only acted as an agent, and that they must look to the owner for payment. Postea to the plaintiffs. Whitehead v. Vaughan, 1785, Cooke, 579- — Mr. J. Bidler considered it as a settled point, that there is a general lien on policies in the hands of the insurance broker. Parkek v. Carter, 1788, Cooke, 580.— The de- fendants contended they had, as policy-brokers and general agents of the bankrupt, a right to retain the whole money received from the underwriters, towards payment of the APPENDIX. 21 balance due to them, and not merely, as was contended for ihe plaintiff, for the charge of the insurance. — And the court were of that opinion. KiNLOcH V. Craig, 1789, 3. Term Rep. II9. — Acti(jn for money had and received. Verdict for the plaintiffs. Motion for a new trial. The plaintiffs clain)ed as assignees of Sandiman and Graham; the de- fendant was the sequestrator of Steine, It was proved that Sfeiue used to send cargoes to Sandiman and Gra- ham, and drew bills on them, which they accepted in con- fidence of the cargoes. That they had 1200/. per annum in lieu of commission, and a quarter per cent, commission, and 5l. per cent, for money advanced. That bills of lading were from time to time sent, sometimes indorsed, but more generally not. When the cargo in question arrived, San- diman and Co. were under acceptances for 29,000/. on account of Steine, 1200/. of which were for this very cargo : before which time they had received the bill of lading of this cargo, unindorsed, and an invoice of the goods ; and on the 15th of February had insured the cargo in their own names and at their own expense. The ship arrived at London on the 21st of February, the day after Sandiman and Graham had stopped payment ; at which time they told the captain, on his recommending to them to unload immediately, that they did not think themselves at liberty to meddle with the cargo, as they were bank- rupts • but on the 8th of March they paid the captain nix guineas in part of freight. In the middle of March the captain for the first time refused to deliver the goods to Sandiman and Co.'s assignees. It further appeared that Steine had written to Sandiman and Co. to unload when the ship arrived. ^shhurst, J. delivered the opinion of the court. Lord Kenyan having tried the cause, rather wishes to decline giving any opinion j but Mr. J. Butler 2'2 APPENDIX. and Mr. J. Grose concur with me in thinking that there ought to be a new trial. The position laid down, that, as between consignor and factor, the latter has a lien on all consignments for the general balance, is certainly true ; but it must be understood with this restriction, that he has obtained a possession of the cargo. I do not know of any case which goes the length of saying that the factor has a lien till he has obtained the possession of the thing which is the object of the lien. When he has got the possession, the goods are a pledge, and the principal shall not take it out of his hands till he pays him his due. But it has been contended, that by paying part of the freight he obtained a constructive possession ; but that cannot be inferred from the act. He paid the money in quality of factor : there- fore bare payment of a small part of the freight cannot be considered as taking possession of the cargo. If it were to be so considered, the payment of the part of the freight would be a direct fraud ; for it was not paid till the day after he had stopped payment ; and the law would never construe that which was in itself a fraud to vest a posses- sion. But if the captain had in fact delivered the goods, he must have delivered the goods to him in the quality of factor. He had no right to deliver them to him as owner, without an indorsement of the bill of lading. If, indeed, Sandiman and Co. had once got the possession, they then might have insisted on their lien. The doctrine of liens ought to be governed by equitable principles. Rule absolute. The record was sent down to trial a second time, when a special verdict was found. The court gave judgment for the defendant without hearing any argu- ment, saying that the case as it stood now on the special verdict could not be distinguished from that which had come on before : whatever difference there was, made it still stronger against the plaintiffs; for it was now posi- tively found that the bankrupts had refused to accept the APPENDIX. 23 cargo, and never had possession thereof. Judgment for the defendant. A writ of error was afterwards brought in ihe House of Lords, where the judgment of B. R. was affirmed by the unanimous advice of all the other judges. And the Lord Chief Baron Ei/re, in delivering the opi- nion of the judges, observed, that the bankrupts could have no lien in this case, as the special verdict found that the goods never got into their posjessiwi. Vanderzee v. Willis, 1789, 3. Brown, 20. — Bill by the widow and executrix of James Vanderzee de- ceased, to redeem securities pledged by the testator to the house of Moorkouse and Co. bankers, of which the defen- dants are the present partners. The case was as follows : in the year 1778, the deceased kept an account with the house of Moorhouse and Co. as bankers ; and^ upon the 10th of August in that year, he borrowed of the then partnership 1000/. (having then 400/. in the hands of the house) and gave a promissory note, and deposited several bonds and other securities as a pledge for the re-payment thereof. These securities were frequently changed by Vanderzee ; and as one was taken away, another of equal value was deposited in its room. In 1784, Vanderzee owing the above 1000/. and about 400/. on his banking account, the partnership required an assignment of the se- curities, and Vanderzee, being an attorney, prepared a bond and deed-poll for securing 1000/. although ihere were 400/. more then due ; and Vanderzee overdrew his account, after the execution thereof, and was, at his death in 1785, indebted to the partnership in the sum of 541/. over and above the 1000/. The bill prayed that the plaintiff might redeem, on payment of 1000/. and interest only, insisting that the deposit was made as a security for that sum only, and the rather as a larger sum was then due, and that the defendants had no lien on the securities 24 APPENDIX. for any further sum, and also stated that the personal and fee-simple real estate of the testator were not more, or little more than sufficient to pay his specialty debts, and that a bill had been filed by creditors against the present plaintiff and the heir at law, in which suit there had been a decree for the creditors to come in. The defendants insisted, by their answer, upon a right to retain the securi- ties to ihe amount of their whole demand, stating their practice to be never to suffer a customer to overdraw his account more than 100/. without security, and that it was intended by the partnership that the assignment should cover as well the balance due, and to become due from Vanderzee on his cash account, as the 1000/. and interest; and that the partners always considered themselves to have a lien upon the securities for the whole debt.- Lord Chancellor. All the cases agree, that if the executor as- signed the equity of redemption, it would put an end to the tacking : so it would if the specialty creditor brought the bill. I am afraid the rule has been laid down too broad, and that there being a decree for creditors to come in, they must redeem on payment of the 1000/. with interest. Nicholson v. Chapman, 1793, 2. H. Black- stone, 254. — Trover. A considerable quantity of tim- ber, the property of the plaintiff, was placed in a dock on the banks of the Thames, but the ropes with which it was fastened accidentally getting loose, it floated, and was car- ried by the tide as far as Putney, and there left at low water, upon a towing-path within the manor of Wimbledon. Being found in this situation, the bailiff of the manor, one Fairchild, employed the defendant Chapman, to remove the timber with his waggon from the towing-path which it obstructed, to a place of safety at a little distance. This Chapman accordingly did, and when the plaintiff sent to APPENDIX. 25 demand the timber to be restored to him, refused to deli- ver it up, unless 61. 10s. 4c?. were paid, which he claimed partly by way of salvage, as a customary right due to the lord of the manor, and partly as a recompence to himself for the trouble of drawing the timber from the water side to the place where it then lay : but this demand the plain- tiff refused to comply with, and did not tender any other sum. Lord Chief Justice Eyre. The only diffi- culty that remained with any of us, after we had heard this case argued, was upon the question. Whether this transac- tion could be assimilated to salvage ? The taking care of goods left by the tide upon the banks of a navigable river, communicating with the sea, may, in a vulgar sense, be said to be salvage ; but it has none of the qualities of sal- vage, in respect of which the laws of all civilized nations, the laws of Ohron, and our own laws in particular, have provided that a recompence is due for the saving, and that our law has also provided that this recompence should be a lien upon the goods which have been saved. Goods carried by sea are necessarily and unavoidably exposed to the perils which storms, tempests, and accidents, (far be- yond the reach of human foresight to prevent,) are hourly creating, and against which it too often happens that the greatest diligence and the most strenuous exertions of the mariner cannot protect them. When goods are thus in imminent danger of being lost, it is most frequently at the hazard of the lives of those who save them, that they are saved. Principles of public policy dictate to civilized and commercial countries, not only the propriety, but even the absolute necessity of establishing a liberal recompence for the encouragement of those who engage in so dange- rous a service. — Such are the grounds upon which salvage stands; they are recognized by Lord Chief Justice Holt in the case which has been cited from Lord Raymond and Salkeld. But see how very unlike this salvage is to the 26 APPENDIX. case now under consideration. In a navigable river within the flux and reflux of the tide, but at a great distance from the sea, pieces of timber lie moored together in convenient places ; carelessness, a slight accident, perhaps a mischie- vous boy, casts off the mooring rope, and the timber floats from the place where it was deposited, till the tide falls, and leaves it again somewhere upon the banks of the river. Such an event as this gives the owner the trouble of em- ploying a man, sometimes for an hour, and sometimes for a day, in looking after it, till he finds it, and brings it back again to the place from whence it floated. If it happens to do any damage, the owner must pay for that damage ; it will be imputable to him as carelessness, that his timber in floating from its moorings is found damage feasant, if that should happen to be the case. But this is not a case of damage feasance; the timber is found lying upon the banks of the river, and is taken into the possession and under the care of the defendant, without any extraordinary exertions, without the least personal risk, and in truth with very little trouble. It is therefore a case of mere finding, and taking care of the thing found (I am willing to agree) for the owner. This is a good office, and meritorious, at least in the moral sense of the word, and certainly entitles the party to some reasonable recompence from the bounty, if not from the justice of the owner ; and of which, if it were refused, a court of justice would go as far as it could go towards enforcing the payment. So it would if a horse had strayed, and was not taken as an estray by the lord under his manorial rights, but was taken up by some good- natured man and taken care of by him, till, at some trou- ble, and perhaps at some expense, he had found out the owner. So it would be in every other case of finding that can be stated (the claim to the recompence differing in degree, but not in principle) ; which therefore reduces the merits of this case to this short question, Whether every APPENDIX. 27 man who finds the property of another which happens to have been lost or mislaid, and voluntarily puts himself to some trouble and expense to preserve the thing, and to find out the owner, has a lien upon it for the casual, fluctuating, and uncertain amount of the recompence which he may reasonably deserve ? It is enough to say, that there is no instance of such a lien having been claimed and allowed ; the case of a pointer dog, was a case in which it was claimed and disallowed, and it was thought too clear a case to bear an argument Judgment for the plaintiff. Ex PARTE Lee, 1793, 2. Vesey, 285.— A joint commission of bankruptcy issued against Boylston, as partner in the house Lane and Frazcr. A separate com- mission also was taken out against him. The act of bank- ruptcy was committed by lying two months in prison. The joint commission was established, and the separate commission superseded. The attorney, who was concerned for the bankrupt, and in resisting the joint, and prosecuting the separate, commission, was in possession of papers re- lative to the bankruptcy, by delivery of the bankrupt pre- vious to the commission, but subsequent to the arrest ; and he claimed a lien upon these papers for the amount of his demand for business done. The object of the peti- tion, by the assignees under the joint commission, was, to have all such papers, 8cc. delivered up to them. Lord Chancellor. There is no pretence for a lien here. The attorney, who is fighting the separate commission, cannot have any lien upon papers against the general creditors. The relation is clear. I cannot help the statute. The law is positive. There can be no possible lien acquired after the first arrest. Davis v. Bowsher, 1794, 5. Term Rep. 488. — This was an action of assumpsit by the plaintiffs as indorsees 28 APPENDIX. of a bill of exchange for 635l. 10s. against the defen- dant as drawer. The defendant drew the bill in question on one Ames, payable to Cook, from whom he received no consideration for it. Cook was a trader at Bristol, and kept an account with the plaintiffs, who were bankers in the same place. The course of dealing between them was this : Cook lodged bills payable at future days with the plaintiffs from time to time, and drew upon them for any money he wanted in advance ; and the plaintiffs charged no interest on these advances, but used to select out of the bills in their hands such as they pleased and were nearest to the sum advanced, and discounted these bills, debiting Cook with the amount of such discount in his account. On the 26th February the balance on Cook's account with the plaintiffs was 103/. in his favour. On the 27th he directed his clerk to pay in to the plaintiffs other bills to the amount of about 3000/., which was done ; and he applied for another advance, which the plaintiffs at first refused, but they afterwards consented to let him have about 1400/., and actually entered the discount on such of the bills as they selected, amongst which the bill iti ques- tion was not one. And on the plaintiffs refusing to make Cook any further advance, he demanded this and the other bills which had not been discounted, none of which were then due : but the plaintiffs refused to deliver any of them up, alleging their right to detain them all, in case any of the discounted bills should prove bad. Those discounted bills had longer to run than the bill in question. At this time none of the discounted bills had been dishonoured ; though some of them, beyond the amount of the present bill, afterwards were so ; and at the time of the demand and refusal the sums which the plaintiffs had advanced to Cook were considerably more than covered by the amount of the discounted bills in their hands, in the event of their proving to be good bills. Before this action was brought APPENDIX. 29 Cook became a bankrupt, and the plaintiffs proved their debt under his commission for the balance of their account ; and in the affidavit, usual upon such occasions, they swore that they had no security for their debt, except certain bills which they specified, and which only comprehended the discounted bills, and not the bill in question. There was also some evidence at the trial of the general custom of the bankers at Bristol to keep their accounts in the same man- ner as the course of dealing shewn between the plaintiffs and Couk ; namely, that it was usual with them, upon any advance to a customer, who lodged bills in their hands, to apply such advance to the discount of particular bills, without any special agreement to that effect with such cus- tomer, or with a view to select such particular bills as the basis of the credit, or relinquish their general lien upon other securities. The cause was tried before Mr. Baron Perrj/H at the last assizes at Bristol, when the jury found a verdict for the plaintiffs ; to set aside which a motion was made, and rule nisi granted in Michaelmas term last. Lord Kenyoii, Ch. J. — I disclaim grounding my opinion upon any particular law applicable to the City of Bristol only : I am clearly of opinion, that by the general law of the land a banker has a general lien upon all the securities in his hands belonging to any particular person for his ge- neral balance, unless there be evidence to shew that he re- ceived any particular security under special circumstances, which would take it out of the common rule. But it is taken for granted by the counsel in support of the rule, that the party had a right to demand of the bankers certain bills, which were not discounted, without paying their ge- neral balance ; and the whole argument is built on that mistake. I think he had only a right to demand this bill iub rnodo, namely, on paying all that was then due to the bankers : for wherever a banker has advanced money to another, he has a lien on all the paper securities which 30 APPENDIX. come into his hands for the amount of his general balance. It has been urged that the bankers abandoned their general lien in this case, by applying the money advanced to the discount of a particular bill ; but nothing appears to war- rant such a supposition. So long as they were in advance upon the general account, they had a right to charge inte- rest whether in one shape or another. But whether they could charge interest upon any particular bill, provided they were not in advance upon the general balance, is a ques- tion not necessary to be decided now ; but upon which they may possibly find themselves mistaken whenever it comes to be fully canvassed. I see nothing however in this case contrary to the general rule of law, and the practice amongst bankers. It is very proper that there should be a known rule to govern the conduct of all persons of this descrip- tion, whose dealings are very extensive ; and that rule is, that no person can take any paper securities out of the hands of his banker, without paying him his general ba- lance, unless such securities were delivered under a parti- cular agreement, which enables him so to do. If we were to set aside this verdict, we should unsettle that which has always been considered as the law on this subject, and the constantly received course of trade founded upon that law. I am therefore clearly of opinion, that we ought not to treat this even as a doubtful question, but that we should discharge the rule for a new trial. Ashhurst, J. — I en- tirely concur in opinion with my Lord that the general rule is, that bills paid into a banker's hands generally can at no time be taken away from him, until the party has paid him his general balance. Here the bills were paid in upon the general account, and the balance not being settled at the time when they were demanded, the party had no right to insist upon receiving them. It would be inconvenient to commerce in general, and injustice to the plaintiffs in this particular case, to set aside the verdict which has been APPENDIX. 31 given,— -—Grose, J. — The question is, Whether under the circumstances of this case the bankers had not a lien upon all the paper securities in their hands for the amount of the general balance ? The evidence goes to shew that they had, according to the general dealing and understand- ing between the parties ; and the jury having given credit to this evidence, I see no reason to find fault with their verdict, more especially as it is according to the real jus- tice of the case. Rule discharged. Nayler v. Mangles, 1794, 1. Esp. 109. As- sumpsit for money. The plaintiff had purchased from one Boj/ne twenty-five hogsheads of sugar, then lying in the warehouses of the defendant, who was a wharfinger. Boyne was in debt to the defendant to the amount of \Qlll. part of which only was for the charges of these twenty-five hogsheads of sugar : the remainder was for the balance of a general account, for which the defendant claimed a lien. Lord Kenyon said, liens were either by common law, usage, or agreement. Liens by common law were given where a party was obliged by law to receive goods, &,c. ; in which case, as the law imposed the burthen, it also gave him the power of retaining for his indemnity. This was the case of innkeepers, who had by law such a lien. That a lien from usage was a matter of evidence. The usage in the present case had been proved so often, he said, that it should be considered as a settled point that wharfingers had the lien contended for. Walker v. Birch, 1795, 6. Term Rep. 258.— On the trial of this action for trover for cotton before Mr. J. Lawrence at Lancaster, a special case was reserved, of which the following is the substance. In March, 1793, and for several years before, Caldwell and Co. were part- ners as bankers ; two of the partners, Caldwell and Smyth, 32 APPENDIX. resided at Liverpool, the other two, Forbes and Gregory, in London. On the 18th of March, 1793, they became bankrupts : and on the same day Greaves and Denison also became bankrupts in consequence of the failure of Caldwell and Co. Previous to the above bankruptcies, the cotton, for the recovery of which the action was brought, was deposited with Caldwell and Co. by Messrs. Hodgsons as a security for money which had been ad- vanced to Hodgsons by Caldwell and Co. At the time of the bankruptcy of Caldwell and Co. Messrs. Hodgsons were indebted to them in a large sum of money. J. Forbes, jun., who was not a partner with Caldwell and Co., was on the 11th of March, 1793, sent down from London to Liverpool to procure bills of parcels of goods, which goods were to be deposited in the name of J. Forbes with bro- kers in Liverpool; and on which a large sum of money was intended and expected to be raised. In consequence thereof, on the 13th of March, 1793, the cotton in ques- tion was put into the hands of Greaves and Co. by Cald- well and Co. to procure the advance of money by the se- curity of brokers' certificates to be made out to J. Forbes; and thereupon Greaves and Co. gave the following ac- knowledgment or receipt : " Liverpool, 13lh March, 1793, Received from Mr. J. Forbes, jun. (so many bags of cot- ton, marked, &c. amounting to, &,c.) for sale ; for the net proceeds of each parcel when and as received we promise to be accountable and to pay the same to the said Mr. J. Forbes, jun., or his order." Such deposit was made, and such acknowledgment given to J. Forbes, jun., in order to enable Caldwell and Co. to obtain a loan of money for the accommodation of themselves and of Forbes and Gre- gory, on whom they drew bills in London. J. Forbes returned from Liverpool to London on the same 13th of March, 1793, after the delivery of the cotton in question, taking with him the bills of parcels and brokers' certificates APPENDIX. SS of the goods so deposited. On his arrival in London on the 15th of March, the bills of parcels and brokers' certi- ficates were produced to the friends of Caldwell and Co. and of Forbes and Gregory ; but a difficulty arose in rais- ing the money. On the nigiit of the 15th of March it was found that Forbes and Gregory must become bank- rupts ; and on the l6th they did become bankrupts. Greaves and Co. were indebted to Caldziell and Co. at the time of the bankruptcy of the latter in 1625/. 15s. 5d. for cash and bills advanced by Caldzcell and Co. Of the bills so advanced by Caldwell and Co. for Greaves and Co., bills to the amount of 1187/. 10s. 10(f., have not been paid, and the same have been proved by the holders at the time of the bankruptcy of Caldzcell and Co. against the estate of Caldzcell and Co. and of Forbes and Gregory who had accepted the same, and also against the estate of Greaves and Co. Previous to the bankruptcy of Cald- well and Co. and of Greaves and Co. several bills of ex- change, amounting to 7000/. were drawn by Caldwell and Co. on Forbes and Gregory in favour of Greaves and Co. and indorsed by them ; which bills were so drawn and in- dorsed at the request and for the account of G. and H, Brozcne, who are now bankrupts. Other bills of exchange to the amount of 5106/. 8s. were likewise drawn by Cald- zvell and Co. on Forbes and Gregory in favour of Greaves and Co. and indorsed by then), and they were so drawn and accepted at the request and on the account of J. P. Richard who is still solvent. The above bills were charged by Caldzvell and Co. in their books to the several accounts of G. and //. Browne and J. P. Richard re- spectively, and not to the account of Greaves and Co. ; and G. and If. Brozvne and J. P. Richard were respec- tively indebted to Caldnell and Co. at the tinie of the bankruptcy of Caldzcell and Co. on the balance of ac- counts. None of these bills were in the hands of Greaves i> 34 APPENDIX. and Co. at the time of their bankruptcy, nor were they then due, nor have the defendants yet paid any dividends thereon ; but all or the greater part of them have been or may be yet proved against the estate of Greaves and Co. as the indorsers, as they have been already proved against the estate of Caldwell and Co. as drawers, and of Forbes and Gregory as acceptors. The plaintiffs, when ihey de- manded the cotton in question, (which was before the ac- tion was brought,) tendered to the defendants fifty guineas, which exceeds any demand that Greaves and Co. or the defendants had against Caldwell and Co. or the plaintiffs, or J. Forbes, juo., independently of such right as the de- fendants may have to detain the cotton as an indemnity against any payment which the defendants may eventually make as dividends on the above indorsements of the bills so drawn by Caldwell and Co. Lord Kenyou, Ch. J. There is no doubt, and indeed the point has been so long settled that it ought not now to be brought into dispute, but that in general a factor has a lien for his general ba- lance on the property of his principal coming into his hands. But the question here arises on the application of that proposition to the present case. It is a maxim as old as our law, conventio vincit legem. The parties may, if they please, introduce into their contract an article to pre- vent the application of a general rule of law to it. In order to determine the present case, it is not necessary to consider how the case would have been, if there had been no express stipulation between the parties in this case ; for the whole resolves itself into this, that the goods in ques- tion were deposited with the defendants for a particular purpose. It does not appear that it was known that J. Forbes was the agent of Caldwell and Co. : as between him and them it was perfectly well understood ; but his situation with them does not seem to have been communi- cated to Greaves and Denison. And indeed it is of little APPENDIX. 35 importance whether it were or not, since the cotton was deposited with them by J. Forbes for the particular pur- pose mentioned in the note signed by them, and a spe- cial receipt was given by them fur it : in that note they acknowledged that they had received the cotton for sale, and promised to pay the proceeds of it when sold to J. Forbes or his order. The lien which a factor has on the goods of his principal arises upon an agreement which the law implies : but where there is an express stipulation to the contrary, it puts an end to the general rule of law. Here the parties are bound by their express stipulation, which excludes all ideas of a lien ; and the goods in ques- tion, not having been sold, are to be returned to the plain- tiffs who represent Caldwell and Co. The goods are the property of the plaintiffs ; they are in the possession of the defendants, w ho have refused to deliver them ; these propo- sitions have been made out in this case, and nothing is stated on behalf of the defendants which can justify their detention of the goods. Ashhurst, J. The difficulty in this case has arisen from the multiplicity of facts stated in it ; for U'heu they are simplified, the question admits of no doubt. The general rule of law that a factor has a lien on the goods of his principal for his general balance is not dis- puted : but here the goods were deposited in the hands of particular factors for a particular purpose, which is stated by the factors theniselves in their receipt ; and this nega- tives the general rule respecting liens. Grose, J. de- clared himself of the same opinion. Lawrence, J. The doctrine of liens only applies to cases where goods have been deposited in the nature of a pledge. Now here Greaves and Denison never acted as the brokers of Cald- well and Co. before this transaction. Then how can it be considered that these goods were deposited with the former as a general pledge ? No money was advanced by them on the goods in question : the cotton was placed in their D 2 o() APPENDIX. hands for a special purpose, namely, for sale : but it was not sold, and the brokerage had not commenced ; and if so, there is no pretence to say that they have any lien on the cotton for the balance of their accounts. Postea to the plaintiffs. Read r. Dupper, 1795, 6. Term Rep. 361.— The principal cause of action, which was for business done by the plaintiif for the defendant, was agreed to be referred to the master, who awarded a certain sum to be paid to the plaintiff together with costs. The plaintiff afterwards threatened to take the defendant in execution, unless the money due to him was immediately paid ; whereupon the defendant's attorney, after notice from the plaintiff's attor- nies not to pay it to the plaintiff himself because their bill was not satisfied, paid the whole sum to the plaintiff him- self. In consequence of which the plaintiff's attornies ap- plied to this court in the last term, and obtained a rule calling on the defendant's attorney to shew cause why it should not be referred to the master to see what lien the plaintiff's attornies had upon the debt and costs recovered in this action as against the plaintiff himself, and why the defendant's attorney should not pay over that sum to the plaintiff's attornies. Lord Kenyon, Ch. J. The prin- ciple by which this application is to be decided was settled long ago, namely, that the party should not run away with the fruits of, the cause without satisfying the legal demands of his attorney, by whose industry, and in many instances, at whose expense, those fruits are obtained. If, indeed, the money had been paid over bona Jide to the plaintiff before notice from his attorney of his lien, such payment would have been good ; but here the payment was made in violation of the notice, which cannot be suffered. In Welch v. Hole, Lord Mansfield compared this to the case of an assignment of a chose in action, which indeed in APPENDIX. 37 legal strictness cannot be done ; but still according to the rules of equity and honest dealing, if tlie assignee give no- tice to the debtor of such assignment, he shall not after- wards be suffered to avail himself of a payment to the principal in fraud of such notice. Sweet v. Pym, 1800, 1. East, 4. — In trover for certain bales of cloth. The facts appeared to be these. The bankrupt a clothier residing in London, before his bankruptcy employed the defendant, a fuller residing in Exeter, in his business ; and at the time of the transaction aftermentioned, the bankrupt vias indebted to the defen- dant upon the general balance of accounts in more money than the value of the goods in question : and by the custom of the trade at Exeter the defendant had a lien for his ge- neral balance. The cloths for which the action was brought had been sent by Gard before his bankruptcy to the defendant to be fulled as usual : and after they were finished the defendant, in consequence of prior orders from Gard, shipped them on board a certain vessel at Exeter to be forwarded to him in London, and sent the invoice to Gard. No bill of lading was signed by the captain at the time of the shipment: but soon after the vessel sailed, Pym, hearing of Gard's bankruptcy, followed and over- took the captain off Deal in his passage to London, and there procured him to sign a- bill of lading to Pi/m or his order, by virtue of which Pym obtained the delivery of the goods on their arrival in London. At the trial before Lord Eldon at the last assizes for the city of Exeter, the plaintiffs recovered a verdict under his Lordship's direc- tion, he being of opinion that no person having a lien on goods, can, if he part with the possession, afterwards stop them in transitu, and thereby revive his lien against the owner. But he gave the defendant's counsel leave to move this court to enter a nonsuit, if they should be of a diffe- 38 APPENDIX. rent opinion. Lord Kenyan, Ch. J. The right of lien has never been carried further than while the goods continue in the possession of the party claiming it. Here the goods were shipped by the order and on account of the bankrupt; and he was to pay the expense of the carriage of them to London : the custody therefore was changed by the delivery to the captain. In the case of Kinloch v. Craig, where I had the misfortune to differ with my brethren, it was strongly insisted that the right of lien ex- tended beyond the time of actual possession ; but the con- trary was ruled by this court, and afterwards in the House of Lords : though there the factor had accepted bills on the faith of the consignments, and had paid part of the freight after the goods arrived. Grose, J. 1 consider the delivery of the goods by Pym to the captain to be equivalent to a delivery to Gard. Rule refused. Spears v. Hartly, 1800, 3. Espinasse, 81. — This was an action of trover for a log of mahogany. The defendant was a wharfinger, and claimed sl lien on it, as well for the wharfage as for the balance of a general ac- count; which balance was due in the year 1790, under which lien he justified a right to retain it. Lord Eldon referring to the case of Naylor v. Mangles, said, this point has been ruled by Lord Kenyon, that a wharfinger has a lien for the balance of a general account, and consi- dered as a point completely at rest ; 1 shall, therefore, hold it as the settled law on the subject, that he has such a lien as is claimed in the present case. It appeared that the balance which the defendant claimed to be due, and under which he entitled himself to a lien, had accrued in the year 1790, and so was barred by the statute of limitations ; the debt being therefore discharged by operation of law, the defendant could not be entitled to any lien by virtue of it. • Lord Eldon. If what has been stated by the defen- APPENDIX. 39 Want's counsel be law, that the debt is discharged by tiie operation of tlie statute of limitations, no lien could be obtained by reason of it ; but the debt was not discharged, it was the remedy only ; I am of opinion, that though the statute of limitations has run against a demand, if the cre- ditor obtains possession of goods on which he has a lien for a general balance, he may hold them for that demand by virtue of the lien. In this case the defendant had a subsisting demand when the goods came to his possession ; and I am of opinion he may enforce it by the Hen which the law has given him for his general balance. Richards v. Borrett, 1800, 3. Espinasse, 102. ■ — Assumpsit for money had and received. The defendant being in the Fleet Prison, and distressed for money, had applied (hy means of one Bryant, an attorney) to the plaintiff, to borrow some ; the plaintiff lent him some mo- ney, and took from the defendant a bond and warrant of attorney, to secure an annuity. Shortly after, the defendant applied through the same channel to the plaintiff, to bor- row more money ; the plaintiff required a further security than a bond and warrant of attorney; and the defendant deposited with him the lease of a farm in Kent, which he represented as unincumbered ; and it was endeavoured to be proved, that he meant to charge this real property with payment of an annuity for the latter sum advanced • but the defendant's counsel asserted that it was only depo- sited with a view to secure the payment of the rent by the tenant in discharge of the annuity. Tiie proof not coming up exactly to that point, Lord Kenyon said, it had been held in equity, that depositing all, or even part of the deeds respecting real property, implied an intention of charging the real estates, and gave the party a lien upon them ; and that as this was an equitable action, he would hold the same doctrine. No memorial of the first an- 40 APPENDIX. nuity had been registered, nor had any deed to charge the real property with the second annuity been registered ; and the annuity having been in arrear, the present action was brought to recover the consideration-money. No appli- cation had been made to the court to set aside the first annuity ; and Erskine, for the defendant, contended, that the securities were only voidable ; and that being still in existence, the present action could not be maintained. Lord Kenyon thought the objection was well founded with respect to one annuity : the party should be called upon to complete the securities ; and those for part having been completed as far as the party had been called upon, they must be considered as valid until set aside by the court; but, with respect to the other, the defendant not having done, or being unable to do, that which he had un- dertaken ; namely, to charge the real estate, the plaintiff was entitled to recover the consideration- money of that annuity. A verdict was found, by consent, for the con- sideration-money of both annuities. Weldon v. Gould, 1801, 3. Espinasse, 268. — Trover for a quantity of calicoes. Plea of Not Guilty. The case was, that the plaintiff had delivered the calicoes to one Pearce, to have them printed ; he deli- vered them to the defendant, who was a calico-printer: the defendant did not know that the goods did not belong to Pearce; and he kept the goods for the balance of a general account between Pearce and him. Lord Ken- yon said, that he thought the plaintiff had a lien for a general balance ; and that the same point had been before decided, that calico-printers had such a lien ; but that it must be for work done in the course of that business, for which the lien was claimed ; — they could not claim a lien for money lent, or for any collateral matter : it should be confined to work done in the particular business. As to APPENDIX. 41 the second point, he was of opinion, that if the goods were taken in by the defendant as the goods of Pearce, who was his debtor, and ignorant that the property belonged to ano- ther, he thought the Hen extended to those goods, and gave the defendant a right to hold them. It was like the case of a factor, where, if the person who deals with a factor, receives goods from him as his own, he has a right to hold them for a debt due by the factor, and against the rightful owner; and cited George v. Claggett, 7. Term Rep. 350 . It would therefore be necessary for the defendant to shew, that there was such a balance due to the defendant, as en- titled him to hold the goods as a lien. The defendant did give that evidence, and had a verdict. Maanss v. Henderson, 1801, 1. East, 335. — In assumpsit. The case was, that the plaintiff, being a Prussian residing at Stettin in Prussia, and owner of the ship Gustav, consigned the said ship in 1796 to Jennings of Liverpool, with orders to charter her with salt on the plaintiff's account from Liverpool to Riga, and to effect an insurance thereon. Jennings opened the policy in the usual way in his own name with the defendants, who were brokers residing in Liverpool, with whom he had before been in the habit of effecting insurances on account of others as well as for himself. Nothing was said by Jen- nings on this occasion whether the policy were opened on his own or any other account, except that he said it zaas neutral; and the policy itself, though effected in the name of Jennings, was warranted ueutraL Tiiis was done on the 14th of October, 1796, and it was not till the 31st, after Jennings stopped payment, that he told the defen- dants that he was only an agent in this transaction, and named to them his principal, the present plaintifi". The ship sailed on the voyage insured, and meeting with bad 43 APPENDIX. weather an average loss was incurred, to recover which this action was brought. At the time of Jennings's failure he was indebted to the defendants on the general balance of accounts for premiums on this and other insurances to a greater amount than the average loss in demand in this action, and for which the defendants were accountable ; and the question was, Whether they were entitled to re- tain in this action as having a lien on this sum in their hands for such general balance as between them and Jen- nings'^ At the trial at the last Sittings at Guildhall, the jury, by the direction of Lord Kenyan, found a verdict for the plaintiff for the amount of the average loss, deducting the amount of the premium upon this policy ; his Lordship being of opinion that the information conveyed by Jen- nings to the defendants at the time, that the interest was neutral, was a sufficient indication to them that he was only acting as agent for another in that transaction, though the principal's name was not then disclosed ; and conse- quently that the defendants had no lien upon the policy as against the plaintiff for their general balance against Jen- nings, but only for the amount of the particular premium. A rule nisi having been obtained for setting aside the ver- dict and granting a new trial, on the ground of a misdirec- tion in this respect. ^Lord Kenyan, Ch. J. said that he remained of the same opinion as at the trial. If the agent disclose his principal at the time, it is clear that he cannot pledge the property of such principal to another with whom he is dealing for his own private debt. It is true that he did not name him at the time, but he did in effect the same thing by saying it was for a neutral. Supposing the agent had said to the defendants. It is true I am agent for a foreigner, but nevertheless you may retain the money due to him for my debt ; could such a transaction be sus- tained ? But that which is now contended for is in effect APPENDIX. 43 the same thing. All therefore that the defendants can retain for is the amount of the premiums due on this po- licy on the part of the plaintiff. Rule discharged. Ormerodzj.Tate, 1801, 1. East, 464.— This cause being at issue at York Spring Assizes, 1800, the parties en- tered into bonds to refer it to arbitration, and the arbitrator awarded the defendant to pay to the plaintiff 26/. by two instalments; 10/. on the 24th of May, 1800, and the re- maining 16/. on a certain future day. On the l6th of Mai/ the plaintiff's attorney, having been informed that the parties intended to settle the matter between themselves for the purpose of ousting him of his lien on the costs, served the defendant with notice to pay the amount of the damages and costs to him, and not to settle the same with the plaintiff or any other person, as he had a lien upon the costs for his fees, &c. ; notwithstanding which the defen- dant on demand of the first instalment by the plaintiffs attorney when it became due, refused to pay it to him ; but paid it over to the plaintiff himself, and obtained from him a receipt in full of all demands : and then told the attorney he would never pay him a shilling, and he might get his costs how he could. Thereupon a rule was ob- tained on the part of the plaintiff's attorney, calling on the defendant to shew cause why he should not pay him his costs in this cause out of the money awarded to be paid by the said defendant to the plaintiff, and also the costs of this application. Lord Kenyon, Ch. J. The conveni- ence, good sense, and justice of the thing require that an attorney should have the same lien on damages awarded as if they were recovered by the judgment of the court in the ordinary course of the cause. The public have an interest that it should be so ; for otherwise no attorney will be forward to advise a reference. As to the right of the plaintiff to release any part of the damages, it is out of the 44 APPENDIX. question here ; for this appears to be no other than a mere shuffle between the plaintiff and defendant to cheat the attorney of his lien. Therefore, Per Curiam, rule abso- lute for the defendant forthwith to pay over to the plain- tiff's attorney 10/. the amount of the first instalment awarded to be paid to the plaintiff, and to pay the remain- ing instalment when due to the plaintiff's attorney. White v. Baring, 1801, 4. Espinasse, 22. — This was an action of assumpsit, brought on a bill of lading, by the captain against the defendants, as consignees of the cargo, to recover the amount of the freight and primage. Per Lord Kenyan. The creditor of a ship has a threefold security : the ship itself, the owners, and the cap- tain. The captain is liable by reason of the contracts into which he enters on the ship's account; but having con- tracted and made himself liable for articles furnished to the ship, he thereby acquires a lien on the goods, as well as freight : and I am of opinion, that his lien is co-extensive with his liability to the ship's creditors. If, therefore, the plaintiff can shew that goods were furnished to the ship by his direction, and on his credit and account, I shall hold his lien on the freight to extend so far; and, of course, that the payment to that extent, made by the defendants, has been made in their own wrong. Savill v. Barchard, 1801, 4. Espinasse, 53. — This was an action of trover for a quantity of baize. The plaintiff was a manufacturer, and had sent up the goods in question to Messrs. Green and Walford, his fac- tors, -in the month of December, 1796. At that time there was a war with Spain; but it was expected that peace would shortly take place, when there would be an opportunity of exporting them. Green and Walford spoke to Lucas and Bentley, who dealt in commodities for the APPENDIX. 45 Spanish market, telling them that they had the goods in question, which, when dyed, would suit that market ; and wishing Lucas and Bent lei/ to take them. Lucas and Bentley agreed to take them ; but no price was then lixed, as that was to be determined by the event of a peace. The defendants were dyers, and were applied to by Lucas and Beuthy to dye the baize. It was agreed that they should send for them for the purpose of dyeing, and so preparing them for the market, on the event of a peace taking place. The defendants accordingly sent for the baize ; and they were delivered to them : and the names of Lucas and Bentley put on them by the defendants. Lucas and Bentley having become insolvent while the goods re- mained in the hands of the defendants, the plaintiff de- manded them as his property : the defendants refused to deliver them, claiming a lien on them for the balance of a general account due by Lucas and Bentley to them. It appeared that the defendants did not know that the goods were the property of the plaintiff; on the contrary, Mr. Bentley swore, that he believed the defendants con- ceived them to be absolutely the property of himself and his partner, and that a sale of them had taken place, though the price had not been fixed, nor a bill of parcels deli- vered. The plaintiff's counsel relied on the case of Green v. Farmer, in which it had been expressly decided, that though dyers might have a particular lien for work done on any specific parcel of goods delivered them to dye, they had none for the balance of a general account. The defendants' counsel called several wit- nesses, to prove that the lien claimed by the defendants was considered in tlie trade as unquestioned, and was sanctioned by constant use and practice. One witness swore, that, having retained a quantity of goods belonging to an insolvent estate under a similar claim of lien, the as- signees had brought an action against him, in which he 46 APPENDIX. had succeeded. Other witnesses swore, that they always understood it to be the practice of the trade ; but not being able to prove any particular instances in which it had been asserted, Lord Kenyon said, that their evidence went for nothing. One witness, who had been in the trade for thirty years, swore positively, that he had, in many in- stances, claimed the lien, and in some very recent ones against insolvent estates ; and that such claims had been acquiesced in. Lord Kenyon said, that the courts of law and the understandings of people in general, had gone much in favour of liens : that it was established in the case of bankers, packers, and wharfingers, that they were enti- tled to such lien. That in the case of Green v. Farmer^ Lord Mansfield held, that liens arose either from the ex- press agreement of the parties, — from the particular mode of dealing between the parties, — or from the general course and practice of the trade ; but in that case, there was no evidence of a lien on any of those grounds ; and it was therefore properly held, that there was no lien founded on any such custom : but in the present case, there was strong evidence to prove the general course and practice of the trade, and to establish a lien founded on them. It was a question of great general importance. He was of Lord Mansfield's opinion in the case of Green v. Farmer, that a lien was established by the general course and practice of the particular trade ; and if the jury thought that such was the general course and practice of the trade, they should find for the defendants. The jury found a ver- dict for the defendants ; thereby establishing the principle, that dyers have a lien for the balance of a general account. Hammonds v. Barclay, 1802, 2. East, 227. — Assumpsit for money. Verdict for the plaintiffs with 2556/. lys. Qd. damages, subject to the opinion of this court.^ In April, 1799, the testator J. Blight, who APPENDIX. 47 was then resident in Jamaica, and the owner of the ship Julius Casar, having on board a general cargo on freight for London, addressed the said ship to Fentham, his cor- respondent, in London ; and wrote him a letter dated the 17th of that month to this effect: " I am now loading the ship Julius Ccesar for London addressed to you, and I re- quested you to effect insurance on freight of the ship 4000/. sterling ; say 4000/. sterling on ship Julius Casar, James Adams master, froip Black River; warranted to sail with convoy. I have also to request you to effect a further in- surance on 50 tons of logwood." This letter was received on the 30th of Julj/ following. On the 9th of Mai/ in the same year, Blight wrote a second letter to Fentham, which Arrived in August following, in which he says : " I hope my letters arrived in time for you to effect the insu- rance on the freight of the ship Julius Ccesar, as I mean to draw on you for 2000/. sterling in part. You have my instructions to sell this vessel as soon after her arrival as possible. I think she will on inspection command 5500/. sterling, ships being much in demand : but at all events sell her." On the 1st of Mai/ the ship sailed from her port of loading for her place of rendezvous at Jamaica to join convoy ; and on the 2nd of June Blight died : in- telligence of which event having reached Captain Adams before the ship's departure from the place of rendezvous, he applied to the plaintiffs as executors, both of whom then resided in Jamaica, for histructions how to proceed ; who thereupon directed Captain Adams to follow the in- structions he had before received from the testator. In consequence of the above two letters from Blight, Fent- ham effected an insurance on the freight of the Julius Ccesar, the premiums of which amounted to 982/. 10s. : but a return of premium was afterwards made to the amount of 570/. And he also accepted three bills of ex- change drawn upon him by Blight, two of which bills lie 48 APPEND X. duly paid before his bankruptcy to the amount of 630/. ; and the remaining bill for 1000/. is now outstanding against him. The said insurance vvas effected ; and the accep- tances were given by Fentham before the ship's arrival in England, and before he had received any intimation of the death of Blight. On the 30th of September the Julius CcEsar arrived at London, and the captain, in consequence of the instructions he had previously received, immediately put her under the charge of Fentham, and delivered over the ship's register to him : after which the latter disbursed a further sum for seamen's wages and the necessary use of the ship, to the amount of 490/. 3s. 6d. On the 14th and 21st of J all/ in that year, the plaintiffs wrote to Fentham from Jamaica, which letters were respectively received by him on the 3rd and l6th of September following; in the first of which, after communicating the death of Blight and their appointment as his executors, they say, " The Julius Ctesar after incurring a very extraordinary expense in her outfit, &c. sailed with the last fleet:" and in the second letter they say, " We observe you have effected in- surance to the amount of 4000/. sterling on freight, and 2000/. on logwood, per ship Julius Casar. As the wood has not been shipped, you will of course have the policy cancelled, and the necessary returns for short interest made. Captain Adams s account is likewise unsettled ; but as Mr. Hammonds, who has copies of his several accounts, will be in London about the time you receive this, you will be able to settle with him." Soon after the arrival of the ship, Fentham gave directions to Messrs. Hopkins and Gray, ship-brokers in London, to sell the ship and collect the freight. Shortly after which Fentham became bank- rupt, and a commission issued against him, under which the defendants were chosen assignees. Since which time Messrs. Hopkins and Gray have sold the ship and col- lected the freight due upon the said voyage, and have APPENDIX. 49 accounted with the defendants, and paid over to them the sum of 2d56/. ][)s. 6d., part of the net proceeds thereof. The question for ihe consideration of the court was, whe- ther the defendants as assignees of Fentham have any, and what Hen upon the ship, or freight, or tlie proceeds there- of ; so as to be entitled to set off in this action the whole or any part of the disbursements or acceptances. Grose, J. now delivered the opinion of the court. In this case the plaintiffs claim, not in form but in substance, as executors of James Blight, a sum of money 25.56/. lys. (id., the produce from the sale of the ship Julius Caesar, received by the defendants as assignees of Fent- ham -^ bankrupt : and the question is, Whether, as such assignees, they have any, and what lien upon the ship, or freight, or proceeds thereof; so as to be able to set off what has been paid by Fentham in the disbursements and acceptances stated m the case ? A lien is a right in one man to retain that which is in his possession belonging to another, till certain demands of him, the person in posses- sion, are satisfied. That the defendants have a right to re- tain 490/., part of the sum insisted upon as due to the de- fendant, is admitted. That they have no right to retain 312/f 10$., the balance of premiums paid upon the insu- rance account, nor the ()50/. upon the bankrupt's accep- tances, nor that which the defendants are liable to pay on the acceptance of the bill for 1000/., is insisted: because whatever authority the testator gave was coiuiternianded by his death. The evident consideration upon which the premiums for insurance and the amount of the two bills were paid, and the third accepted, was the consignment of the ship and cargo : and it dues not seem very consistent with justice to say, that after the consignee had advanced the premiums, and paid bills on the credit of the consign- ment, the death of the cuuhignor should operate as a revo- cation, eoas to prevent the bankrupt and his assignees £ 50 APPENDIX. having (he fruits of that which was the foundation and con- sideration upon which he disbursed his money. But as between the plaintiffs, his executors, and the bankrupt, (and his assignees stand in his shoes,) there is another clear decisive answer ; which is, that they affirmed the orders of their testator, and directed the captain to follow the in- structions before received from him, which were to effect hisurance on freight of the ship 4000/. sterling, as he meant to draw on him for 2000/. in part ; to sell the ves- sel as soon after her arrival as possible ; at all events to sell her. Then the plaintiffs write to the bankrupt, affirm- ing his acts ; ordering him to get a return of premium on account of logwood not shipped ; and to settle Captain Adams s account. By their authority then he was in pos- session of the ship, and is entitled to retain out of the pro- ceeds whatever he has expended by the testator's or their order ; they standing in the shoes of the testator, and re- presenting him, as the defendants represent the bankrupt Upon these grounds we are of opinion that there is no foundation for the above objection ; but that the bankrupt having been in possession of the ship, and having sold it, and received the proceeds both by the authority of the tes- tator and the plaintiffs his executors ; and that the money being paid and the bills accepted upon the credit of the ship and cargo consigned to him ; his assignees, the defen- dants, have a lien upon such proceeds for the several sums of 312/. 105. for premiums advanced; 650/. money paid on two bills accepted ; and 490/. sailors' wages ; and for such sum as they shall be compelled to pay upon the third acceptance for 1000/.; and that the case of Kinloch v, Ciaig, the authority of which was relied on to prove that the bankrupt had no lien for the acceptance which he has not paid, does not rule this case. For there Sandiman and Co. had never possession of the property on which they claimed a lien, as Fentham had in this case : and that APPENDIX. 51 case only determined that a person making himself liable hy his acceptances did not thereby prevent the consignor's right of stopping in transitu, in case of his insolvency : and it did not decide, that when a man had in his possession the effects, on the credit of which he had made accep- tances, that he might not retain those effects until he was indemnified against the liability to which he had subjected himself. Postea to the defendant. Mann v. Shiffner, 1802, 2. East, 523. — Action for money had and received. A verdict for the plaintiff for 600/. subject to the following case. R. Heath, a planter in Jamaica, for a valuable consideration in money paid to him by one Allen as agent to the plaintiff and L. Parkinson, drew bills of exchange on Messrs. Atherton and Astley of Liverpool, the merchants of Heath, in favour of the plaintiff and Parkinson, which Atherton and Astley refused to accept (not having funds in their hands of the drawer Heath), and the same were returned. The share of Parkinson in these bills was afterwards paid : and on the 18th July, 1800, Heath shipped in Jamaica on board the Hero, Captain LightJ'oot, for Liverpool, 25 tierces of sugar, to be delivered to the order of the shipper, for which Captain Lightjoot signed a bill of lading, and upon which bill of lading, delivered by Heath to Allen, the fol- lowing indorsements were made. (1st indorsement.) ** Cap- tain LightJ'oot. Sir, If Messrs. Atherton and Astley will engage to pay the net proceeds of the within-mentioned 25 tierces of sugar to the order of W. Allen, you will in that case deliver them to the said Messrs. Atherton and Astley ; but if they do not so engage, &c. you are then to deliver the same to the order of the said William Allen, who is entitled and hereby authorised to recover and re- ceive the amount insured on the same in case of loss, hav- ing received value for the same this 19lh day of July, £ 2 52 APPENDIX. 1800. Richard Heath." (2d indorsement.) " To Cap- tain IJghtfoot. Sir, If Messrs. Atherton and A&tky en- gage to pay the net proceeds of the within-mentioned 25 tierces of sugar to L. Parkinson or his order, you will in that case deliver the said sugar to the said Messrs. Ather- ton and Astley, otherwise you are to dehver them to the order of the said L. Parkinson ; value received of him in Jamaica. (Dated) 23d Ju/i/, 1800, (and signed) Wil- liam Allen.'' (3d indorsement.) " 1 hereby assign, trans- fer, and set over to James Mann pursuant to the directions of W. Allen, all the right, title, property, and interest vested in me to the within bill of lading and to the con- tents, by virtue of the above indorsement from the said W. Allen to me. (Dated) 18th March, 1801, (and signed) L. Parkinson." Allen transmitted the bill of lading with the two first indorsements thereon to Parkin- son for the use of himself and the plaintiff; and when Parkinson had received the money due to him from Heath, he made the 3rd indorsement on the bill of Jading, and delivered it to the plaintiff. Before the sugars were shipped, viz. on the 17th of June, 1800, Heath wrote a letter to Messrs. Atherton and Astley, in which, after no- ticing his engaging so many tierces by the ships Hero and Bacchus, their delay in sailing, and the uncertainty of the crops, &,c. he directs them to " insure by ship or ships at and from Montego Bay as interest may appear." In consequence of this letter, Messrs. Atherton and Astley wrote to the defendants as follows : " Messrs. Shiffner and Ellis, Liverpool, 2nd September, 1800. Please to insure 1000/. on sugars as interest may appear valued at 20/. per hogshead on ship or ships at and from Jamaica to Liverpool on account R. Heath. The Hero and the Bacchus are mentioned as likely to have most of the pro- perty on board." In pursuance of this letter, the defen- dants as agents caused the insurance to be made in the APPENDIX. 53 same terms as directed, which policy has ever since re- mained in their possession. The ship Hero sailed from Jamaica in January/, 1801, and was lost on the 12lh February/, 1801. After the loss, the plaintiff' being then possessed of the bill of lading, tendered to the defendants the premium paid on effecting the policy, and demanded the policy of them, which they refused to deliver. And after he had discovered that the underwriters had paid the loss to the defendants, he demanded of them the money which they had so received, but which they refused to pay. At the time the insurance was ordered, and also when it was effected, Heath was the debtor of Atherton and Astley as his merchants and factors to a larger amount than the sum insured ; and the defendants, as the insurance brokers of Atherton and J&tley, were their creditors to more than the sum recovered upon the said policy ; which debts remained unsatisfied : and the reason assigned by the defendants for retaining the policy and the sum recovered thereon when the same were demanded by the plaintiff was, that uitherton and Astleij were creditors of Heath, and debtors to the defendants ; and tiie defendants insisted they had a lien upon the policy and the money recovered thereon for the balance due to them by Atherton and Astley, which balance exceeded the sum recovered from the underwriters. On the 1st January, 1801, Atherton and Astley stopped payment. The question for the opi- nion of the court was. Whether the plaintiff were entitled to recover in this action ? If the court were of opinion that the plaintiff was entitled to reco%'cr, the verdict to stand, and the damages to be settled by arbitration : but if the court should be of a different opinion, then a verdict to be entered for the defendants. — —Lord EUenborough, Cli. J. now delivered the judgment of the court in favour of the defendants. Their opinion, he observed, was not founded on any right which the defendants had to retain 54 APPENDIX. the policy from the plaintiff on the ground of having a lien on it to satisfy their claim on Atherton and Astley ; but considering them as the servants of Atherton and Astley^ who were entitled to hold the policy as against the plain- tiff, who claimed from Heath the consignor until their claim on Heath was satisfied on the score of their general balance. The case, he added, had been obscured by bringing forward the defendant's lien instead of that of Atherton and Astley, in whose hands the policy was to be considered as in effect remaining. Then as the plaintiff could only have recovered the policy out of the hands of Atherton and Astley, by satisfying their lien, so the same lien attached on the proceeds of that policy recovered from the underwriters ; and as that lien exceeded the plaintiff's demand, the defendants, as servants of Atherton and Astley, were entitled to retain the whole in this action. Postea to the defendants. Oppenheim v. Russell, 180*2, 3. Bosanquet and Puller, 42. — Trover for goods.- At the trial before Lord Alvanley, Ch. J. at the Guildhall Sittings after last Michaelmas Term, it appeared from admissions that the defendant was a common carrier from London to Exeter and Plymouth, and as such received the goods in question from the plaintiffs, by whom they were consigned to the house of Negretti and Co. at Plymouth ; that Negretti and Co. when they ordered the goods to be sent gave no directions respecting any particular carrier, and that there was another carrier from London to Plymouth besides the defendant ; that previous to the arrival of the goods at Plymouth, JSegretti and Co. had failed, and a notice had been given to the defendants by the plaintiffs not to deliver them to Negretti and Co., the plaintiffs at the same time tendering to the defendant his charge of ll. 7s. Q,d. for the carriage of the goods, and offering to indemnify him ; that APPENDIX. 55 the carriage of the goods was to have been paid by Ne- gretti and Co. if the goods had been delivered to them ; and that the sum of 4/. 7s. was due from Negretti and Co. to the defendant for the carriage of other goods ; that the defendant offered to deliver the goods to the plaiutiflfs on their paying him the two sums of 4/. 7s. and 1/. 7s. 9.d. and indemnifying him ; that the defendant in January, 1801, gave public notice by circulating hand-bills and ad- vertisements in the London Gazette and other newspapers, that all goods which should be delivered for the purpose of being carried, would be considered as general liens, and subject not only to the money due for the carriage of such particular goods, but also to the general balance due from the respective owners to the proprietor of the waggon, and and that one of the above mentioned hand-bills had been delivered to Negretti and Co. at their shop in Febriiari/ last. The defendant then offered evidence to shew that it was the usage among carriers to retain for their general balance, but Lord Altanley rejected the evidence, being of opinion that it was not admissible, and that the con- signor's right to stop in transitu could not be affected by such an usage if established, A verdict was found for the plaintiffs, with liberty to the defendant to apply to the court for a new trial. Lord Alvanley, Ch. J. The question before the court is. Whether the evidence which was offered at Nisi Prius was properly rejected, consider- ing for what purpose that evidence was adduced ? This was an action brought by the plaintiff as consignor, against a carrier for the recovery of goods ; and it is stated upon the case that the goods were demanded by the plaintiffs before they either actually or constructively reached the hands of the consignee. According to the general rule the carrier under these circumstances was bound to deliver them, and was liable, as Lord Kenyan very properly de- termined, to an action of trover if he did not deliver them. 56 APPENDIX. Though no act of seizure ensue, yet if tender be made of the sum due for the carriage, the person sending the goods lias a right to resume them ; and that was done in this case. The defence set up by the carrier is this. " It is very true I have not delivered the goods either actually or constructively into the hands of the consignee. I am a carrier, and have not delivered them at the place of their destination ; but I and the rest of my trade have established an usage which is evidence against all persons who make use of us as common carriers, which usage is that the per- son to whom goods are consigned shall not be entitled to take them out of the carrier's possession, or bring an action for the uon-deliveiy of them until he has paid not only for the carriage of those goods, but all the balance he may happen to owe for the carriage of other goods." Evidence was offered at the trial lo prove this usage, in order to raise against the plaintiff this defence, namely, that he was bound by this usage, and that the carrier acquired as against him and his right of stopping in transitu the same right of detainer as against the consignee. 1 am now sa- tisfied that I ought to have admitted that evidence for the purpose of proving the usage, if when proved it would be of any use : for whatever doubts 1 entertained at the trial, I see that by an authority, to which I bow, it has been determined that this sort of usage may be adduced in evi- dence with a view of establishing in particular trades that sort of lien which I um sorry has of late years grown so much into fashion, and has 1 thmk been too much favoured. In Kirkman v. Shawcross it was published in newspapers^ and all the world were apprised that a particular class of traders, such as dyers, bleachers, &c. would not take any goods to be manufactured in a particular way unless sub- ject to a general lien as against the person sending them. But there the person sending them was the person with whom the contract was made, and he had full knowledge APPENDIX. 57 of the usage. Indeed I think there is a great distinction between that case and the case of a carrier or a\i innkeeper; ill the fornoer the trader may or may not take goods to bleacli at his option, and nobody can compel a man to bleach for him ; therefore he who sends goods to a bleacher sends them upon an implied contract that his goods shall not be redemanded by him but upon payment of the bleacher's general balance. I was of opinion that though that evidence of usage might be admissible in that case, it was inadmissible in this case, because if proved it would not aflfect the consignor's lien, and I am of that opinion still ; and if I or my brothers had any doubts upon it we would comply with what has been suggested at the bar, namely, agree to put this case in a shape in which the question might be finally determined ; but as we have no doubts at present, and as it is a case of little consequence in point of value, we shall iw the present stage deliver our opinions; and if the parties are desirous of having this point more solemnly determined, they may bring it forward in a case of more importance. We are called upon to say that this usage set up by the carriers on the western road ought in point of law to prejudice that right which is now as firmly settled, and as much a legal right as any other ; namely, the right of a consignor who has delivered goods to a common carrier to reclaim those goods before they have come into the actual or constructive possession of the person to whom they are addressed. J confess 1 thought the proposition a monstrous one when tirst stated • and 1 still think it impossible to maintain that an ao^ree- ment between the consignees of goods and the carriers upon the western road can put an end to the right of stop- ping ill transitu vested in the consignors of goods before that agreement existed. It was admitted that if the con- signee had made an assignment of the goods, his assignee could not have defeated the rights of the consignor. Then oS APPENDIX. if he could not do it by assignment, how can he by any agreement with the carrier ? for the carrier comes in under the consignee. In the argument the rights of third persons were pushed forward : and most unquestionably they can- not be affected by the right of the consignor to stop in transitu : for if by any thing that had happened to the goods where they were deposited, any person had acquired a right in those goods before they became the property of the consignee, the consignor could not have resumed them without satisfying that right ; but he can resume them without satisfying any riglits derived under the consignee, if he claim to resume them before they come into that situation which gives the consignee a complete dominion over them. Perhaps there is a little difficulty in stating the several rights of consignor and consignee. It has been determined that the moment goods are delivered by A. to a common carrier, to be by him forwarded to B. the pro- perty vests in B., and if they are lost, he, not the con- signor, is the person to bring an action for that loss. This, it was contended, decides the present point. But we must recollect that though the property be in the consignee, still it is liable to be divested by the consignor under certain circumstances, and when the right of resumption is exer- cised by the consignor, the property is revested in him. Though the consignee be the person who must sustain any loss happening to the goods, and therefore the carrier is principally his agent, still he is so far the agent of the con- signor, that the law has said, the consignor has a right to take the goods out of the hands of the carrier at any time before delivery to the consignee. My brother Lens put a case, which I do not think so clear as he seemed to consi- der it, namely, that if the sheriff had found these goods upon the road, and seized them under a ^. fa. in satisfac- tion of a debt due from the consignee to a third person, the consignor's claim to resume the property after such a APPENDIX. 59 seizure could not have availt-d him. Whether the sheriff can make them absolutely the goods of the consignee by stopping them before they come to his hands, appears to me very doubtful. At any rale that is not the present case. Here neither the consignee nor an) body claiming under the consignee had attempted to reduce the goods into actual possession before the claim of the consignor. They remained therefore in the hands of the carrier in the same state as when they were first delivered. Theie is no evidence whatever in this case of the consignor having had any actual notice that this defendant, as a carrier, would take no goods but what were liable to this new lien. In- deed my own opinion at present is, thit he had no right to make such terms with the consignor ; and I hope it will never be established, that common carriers who are bound to take all goods to be carried for a reasonable price ten- dered to them, may impose such a condition upon persons sending goods by them. Then the single question in this case is, whether a stipulation between the consignees and carriers on the western road, that the latter shall ittaiu as against the former for their general balance can take away that common law right which is now firmly established, namely, that till goods have re;iched either the actual or constructive possession of the consignee, the property in them may on certain events revert back to the person by whom they were delivered into the hands of the carrier. The carrier's claim here is in contravention of that right ; for there is no third person to whom any right is derived from the consignor. With respect to the argument adduced from the decisions in favour of indorsees of bills of lading, it is to be observed, that in those cases the consignor him- self had enabled the consignee to raise money upon his goods, and it would have been monstrous to permit the consignor after a credit obtained by means of his own bills of lading, to take the goods out of the hands of ^n assignee Go APPENDIX. in fact claiming under himself. Under these circumstances, therefore, 1 am of opinion that the evidence offered was not admissible for the purpose for which it was offered. Heath, J. I am of the same opinion ; and I found my judgment upon a few principles which I think steer clear of most of the cases cited. In the first place it is clear I think, that the right of seizing in transitu by the con- signor is a common law right ; and that it is so is evident, because it may be the foundation of an action of trover. In the next place, I think it is a right arising out of the ancient power and dominion of the consignor over his pro- perty, which at the time of delivering his goods to the car- rier he reserves to himself. Then the third principle I shall lay down is this, without impeaching any of the cases which have been adjudged, that there is a certain privity of contract between the consignor and the carrier ; and it is evident that there is that privity of contract from this con- sideration, that if, for instance, the consignee has run away and cannot be found, or if the consignee will not take to the goods, but will say " I did not order these goods," or I countermand them, and will not accept them," in either of these cases the carrier may come upon the consignor for the carriage of the goods, which he could not do unless there was a privity of contract between him and the carrier. Then if this is a power reserved out of the ancient domi- nion the consignor has over his property, it is paramount to any sort of agreement as between the carrier and con- signee. As I put the case just now, suppose the consignee is not to be found to receive the goods, could the carrier in such a case say '' there is a running account between me and the consignee, and therefore I will make you the consignor pay the consignee's balance?" Certainly he could not. But if it was in the power of a carrier to create this lien, which I very much doubt as well as my Lord, he might say to the consignor " you owe me money APPENDIX. 61 upon another account, and you shall not have these goods unless you pay me as well for the carriage of ihese goods, as for the ruraiing account between us in respect to the other goods." It is unnecessary for the court at this time to deliver any opinion concerning the legality of this lien, or how far it may properly operate, but I think it is an ex- tremely doubtful matter for the reasons my Lord has given. Rooke, J. This right to stop the goods in transitu I must consider as a legal right. Our courts of common law recognise it, and they distinguish between the con- structive and the actual delivery of goods. This distinction is mentioned by Mr. Justice Buller in delivering his opi- nion in the case of Ellis v. Hunt. Where there is an ac- tual delivery the transitus is at end ; but where the deli- very is constructive or fictitious, there the law considers that as a delivery to certain purposes only ; for it is a fic- tion of law, and that fiction of law must work equity. Now the fiction is this, that it is a delivery so far as to make the carrier answerable to the consignee, to whom he has undertaken to carry them ; but the fiction is never car- ried so far as to deprive the consignor of his right to re- sume them, if stopped before they have actually got to the possession of an insolvent consignee. This is an equitable and just right. * But I can never assent to a doctrine so discreditable to our courts of law as that, because it is equitable and just, that it is therefore not strictly legal. Though a just and equitable right, it is a legal right too, and not a right which needs the aid of a court of equity. Then, what is the claim set up by the defendant? It is a claim founded on a special agreement only. I call it a special agreement for this reason, that it is not founded on general principles of justice, but on paiticular usage. That usage is presumed to have been founded on contracts re- pealed so frequently and so notorious, that every body must be considered as bound to take notice of it. Supposing it 62 APPENDIX. Uierefore to be any right at all, it is a right founded only upon this sort of special agreement, if indeed it was a claim founded upon general principles of universal justice, it ought to be the law of the land, and we should not want any evidence of that which is agreeable to law and justice. The very circumstance, therefore, of admitting evidence in this case shews, that it is not founded on universal right, but on special usage only. The contract itself is a very singular one : for, generally speaking, carriers have extri- cated themselves from the rules of law by making special acceptances. Now we know that a special acceptance can only be made with the consignor or his servant when he brings the goods : it cannot be made with the consignee. Nor can the consignor agree that the consignee shall not take the goods until he shall have paid the general balance ; for in order to make such an agreement, he must delay sending the goods until he could receive an answer whether the consignee would consent to it. It is, therefore, to say no more of it, a very extraordinary case. It is not likely that the consignor would wave his own right of stopping in transitu, when the special acceptance was required of him : and the special agreement of the consignee ought not to bind the consignor's right of stopping in transitu. Then with respect to the usage itself as laid down, my Lord has made an observation very material in my view of the question, which is, that a carrier is bound to carry at all events, and the law gives him a special lien upon the goods. If the consignee is in arrear with the carrier, it is the carrier's own laches. Why then is he to engraft this new lien upon his own laches^^ However, if he choose to do it, and can establish the principle upon which it pro- ceeds (to which I am by no means ready to assent) still it will be founded only on a special agreement. Now I ra- ther think that the practice has originated thus. The car- rier has carried goods to the consignee, and has refused to APPENDIX. 03 deliver them unless he has been paid a general balance ; the answer made by the consignee has been, " Rather than have two actions 1 will pay the demand," for he must himself bring an action in order to recover the goods from the carrier, and then the carrier would have an action against him for the general balance ; and rather than sub- mit to two actions, consignees have suffered such a usage as this to creep in ; and having done it in several instances, the carriers have availed themselves of it, and have pub- lished their hand-bills about town, and now they endeavour to set it up as an universal usage : but it is to be remembered, that this is an usage founded solely on their own laches, for they have a lien by the law of the land for the carriage of the goods. At all events, however, it is nothing more than a special contract between the carrier and consignee : and if it be a special contract on their parts, how is that jpecial contract to interfere with the legal right allowed to the consignor of stopping in transitu'^ I think the com- mon law right of the consignor is paramount, and it shall not be affected by a special agreement between the con- signee and the carrier, even supposing that such an agree- ment could be established. This ] say without giving a direct opinion whether that agreement may or not be esta- blished by evidence. Then the question directly before the court is, Whether a new trial should be granted because the evidence has not been received ? If it were a question merely as between consignee and carrier, to be sure this evidence should have been received, and then the court would have had to decide upon the legality of this special usage between the parties : but if it cannot affect the right of third persons, it was useless to receive it ; and being useless in this case, I am of opinion with my Lord Chief Justice and my brother Heath that no new trial should be granted. Chambre, J. 1 think this modern doctrine of altering the liability to which the common law subjects 64 APPENDIX. parties and vesting in them new rights by piesumed agree- ments arising from the publication of certain notices, has been extended as far or rather farther than it ought to be upon principles of public policy. If the doctrine were to be carried the length which was intimated when this rule was first applied for, the consequences would be monstrous ; but that a notice published by carriers in hand-bills or in the public papers is to subject the goods of every man who happens to employ a carrier to the payment not only of the price of the carriage or to any debt which he himself may owe on the score of carriage to that carrier, but to the debts of another man, is so manifestly unreasonable and so monstrous, that 1 think no legal agreement can be implied from such a notice. Indeed that point seems now to be pretty much abandoned ; and the right which the carrier claims in this instance he endeavours to derive from the con- signee himself. It is going a good way to bind even the consignee of goods by an agreement of this kind : for goods may be sent without his choosing any carrier, or directing by whom they are to come. He orders goods generally ; and yet he is to be bound by an implied agreement with a particular carrier who happens to bring those goods. But it is not material to consider that question at all in this in- stance ; the merits of this particular case have been so fully entered into by my Lord and my brothers, who have already spoken, that I shall be very short in what I have to observe upon this subject. 1 will take it for granted upon this occasion (though perhaps it is not very fully proved) that the delivery to the carrier was, to all intents and pur- poses, a delivery to the consignee, that is a qualified, not an absolute delivery ; but that sort of delivery which would entitle the consignee to have brought his action against the carrier for the loss of his goods, and is a good delivery to all intents and purposes, excepting that of defeating the right of the consignor to stop in transitu. In the cases APPENDIX. 65 Vvhich have been decided, parliciilarly in the last case in the court of King's Bench, there has been what the court considered as a special direction with respect to the carrier who was to bring the goods. The court seemed to con- sider that as a dehvery under the special order of the con- signee, and the decision goes a good deal upon that ground. But I would suppose upon this occasion that as the goods must come by land-carriage, it was sufficient to deliver them to any carrier coming from the place from whence the goods were ordered, and that there was a complete (de- livery to the consignee ; that is, such a delivery as I before stated. Now it is contended on the part of the carrier, first of all, that this right of stopping in transitu is a right in equity. I do not know what is meant by that argument. If it be a right in equity, every thing done in courts of law to enforce this right has been wrong. It is argued, indeed, that it is a legal right founded upon equitable principles ; but that does not seem to be a very precise definition of the right. Then it is contended that this right is not to affect the right of third persons. No proposition can be more true ; but is it true that it does affect the right of third persons ? It is said that the consignee has notice of the conditions upon which the carrier received the goods ; be it so ; but in that case the carrier must derive his right from that consignee. Can he have a greater right than the consignee himself has ? If he derive his right from the property he supposes to be vested in the vendee, he can have only a similar interest in the properly with the vendee. It is beyond all question, that the carrier has a lien for the labour that he has bestowed as against the consignor in the carriage of the particular goods ; that lien is satisfied, the money having been tendered to him, and he having refused to accept it. Now what pretence is there to go farther, even if it were admitted that by publications of this sort carriers could affect the consignor ? I do not think the V 66 APPENDIX. notice published upon tl)is occasion goes the length of af- fecting the consignor beyond that lien which the carrier has for the carriage of the particular goods. The notice is only in general terms that the goods shall be subject to the general balance due from the respective owners. If we take it to be a lien upon the general balance due from the consignor, there is no pretence for any lien beyond the carriage of these particular goods. Taking it to be a lien for the general balance due from the consignee, then it can only be a lien subject to the right of the consignor to stop the goods in transitu in consequence of the insolvency of the consignee. This case has been compared to the case of the consignment of a bill of lading. To be sure two cases can hardly be stated more dissimilar. A con- signee, by a bill of lading, receives what is considered as a kind of negotiable interest and for a valuable consideration : here there is no consideration to the consignor for extend- ing the lien. A consignee of a bill of lading may for a valuable consideration negotiate that instrument. Whence does that arise ? From the usage and custom of merchants. Where is the usage and custom respecting the trade of a carrier to authorise this lien ? In the former case there is an instrument under the hand of the consignor himself, and the consignee acts as his agent ' in the disposition of the property : it is an assignment by the consignor himself. The most colourable argument in my mind that has been used upon this occasion is that which was not mentioned till the reply, comparing this case to the case of a creditor of the consignee taking goods in execution upon their pas- sage. It is assumed that the creditor has that right; but if he has it, I still do not think that the cases are similar. Perhaps the consignee himself may intercept the goods in their passage ; and indeed 1 have little doubt, but that if he do intercept them in their passage before the consignor has exercised his right of stopping in transitu, and do take APPENDIX. 67 an actual delivery from liie carrier before the goods get to the end of their journey, that such a delivery to him will be complete ; and I will not say but that his creditors iu the case of an execution against him for his goods may not do the same thing. No authorities, however, are cited to prove that they may. But supposing that they may, still I do not think it applies to this case ; for the creditor under an execution takes the thing absolutely to sell and dispose of as the consignee himself would have done ; but the carrier does not so take it, for he has no absolute pro- perty in the goods, but only a lien. What is the nature of the possession of a carrier. He has no absolute right in the property ; he has only a lien. Then the question re- turns, Wiiat is the nature of the carrier's lien while the goods are vi transitu^? I conceive his lien cannot, as against the consignee, extend any further than to entitle him to be paid for his carriage of the particular goods, but by the lien the right of the consignor to stop the goods in transitu is not defeated. For these several reasons, and for those which have been urged by my Lord and my bro- thers who have spoken before me, I am perfectly well sa- tisfied that the judgment in this case should be given for the plaintiflfs. As to the rejection of the evidence, the only use that could have been made of that evidence would have been to prove that as against the consignee the carrier had a lien. Judgment for the plaintift's. Richardson v. Goss, 1802, 3. Bosanquet and Puller, IIQ- — Trover for goods. This cause was tried before Lord Alvanley, Ch. J. at the Giiildhall Sittings after last Michaelmas Term, when the following facts ap- peared in evidence. The goods in question were shipped by the plaintiff, who was a dealer in bacon and hams at Newcastle, on board the Formosa, directed to a person of the name of Wilson in JLondon, by whom they had been r 2 68 APPENDIX. ordered. On ihe ]st of June, 1801, Wi/son wrote and sent the following letter to the plaintiff at Newcastle. " This serves to acquaint you that from a heavy disap- pointment I am deprived answering my engagements. It is distressing to say I am under the necessity to refuse my acceptances, the more so as your account is the heaviest I have. This unforeseen accident is caused by the embargo in the Baltic. I flatter myself by having time I shall sur- mount my difficulty ; but if that cannot be allowed, I must give every thing I have in satisfying my creditors. I have received the 4 hogsheads per Neptune, Parkinson, but shall not apply for the 3 hogsheads by the Formosa. Little did 1 think this would have been the case, or I would never have ordered any goods from you. Never- theless, if I meet with candour and patience, I shall be able to surmount all my difficulties." Tiiis letter reached the plaintiff" at Nezccastlc, on the 3rd of June, and by re- turn of post, viz. the 4ili of June, the plaintiff wrote to Wilson, saying, " If I find you an honest man you shall have every indulgence from me ;" but making no mention of the goods on board the Formosa. As soon as the ar- rangement of his concerns would permit, the plaintiff set off from Newcastle for London, and arrived on the even- ing of the 7th of June. Previous to the letter of the 1st of June, viz. on the £2ud of May, Wilson had directed the defendant,' at whose wharf goods were usually landed for him and kept till sent for, to receive the goods coming by the Formosa, and had accompanied his directions by an order to the captain of the Formosa, in the usual form, to deliver them to the defendant or bearer. Wilson was indebted to the defendant to a considerable amount on a former account, as well as for the freight and charges of the soods in question, which arrived at his wharf on the 4th of June, and which the defendant, not having been informed by Wilson of his letter of the 1st of June to the APPENDIX. 69 plaintiff, paid. The plaintiff on his arrival in Londoji de- manded the goods in question, and tendered to the defen- dant the freight and charges; but the defendant refused to deliver them up unless upon payment of the general ba- lance due to him from IVilson. The jury found a verdict for the plaintiff; but liberty was reserved to the defendant to move to have that verdict set aside and a verdict entered for himself, if the court should think him entitled thereto in point of law. Lord Ahanley, Ch. J. Suppose a wharfinger to have a general authority to receive all goods directed for A, B., and that goods come to his wharf by mistake directed for J. B. It is quite clear that the real owner of the goods could not take them away without paying the charges incident to those particular goods : but it is equally clear that the wharfinger could not set up a lien on such goods for a general balance of accounts due from A. B. to him. The question therefore is, Whether the contract between the plaintiff and JVilson was not com- pletely put an end to before the goods were received ? And unless it can be shewn that the goods did not come into the hands of the defendant, as the goods of the plain- tiff, it appears to me that the latter will be entitled to re- cover. If, indeed, the defendant had been induced to ad- vance money or accept bills upon the expectation of the arrival of the goods, he might have acquired a lien upon them to the amount of the credit given upon those specific goods, the party to whom such credit was given having had a right to direct the goods to his wharf at the time when it was given. This was the case of IIa)nmo)ids v. Barclay. But it would be going too far to say, that be- cause Wilson omitted to countermand his order when he ceased to have any right over the goods, the defendant is entitled to a lien upon th(jse goods for the general balance due from Wilson. But in the present case I am of opi- nion, that common justice requires that the lien of the de- 70 APPENDIX. fendant should not be extended beyond what was actually advanced by him upon these particular goods : and as the amount of all the charges incident to these goods was ten- dered by the plaintiff, I think that he is entitled to recover. Heath, J. I am of the same opinion. Here the wharfinger had no right to retain the goods against B,ich- ardson, who was no creditor, in respect of any thing but what had been laid out upon them : though if Wilson had demanded the goods, the wharfinger would have had a right founded on custom to retain for his general balance. In this case no fraud appears, nor any suspicion of fraud, but a mere act of negligence on the part of Wilson, who certainly ought to have given notice to the defendant of his having put an end to the contract. The title of Richard- son was the preferable title: under these circumstances, therefore, the wharfinger has no right to set up any lien against him for the general balance of accounts due from Wilson. Rooke, J. I am of the same opinion. The doctrine of general liens is referable to special agreement, as was observed in Oppenheim v. Russell; and I think that doctrine is not to be favoured, because all persons who claim under them must have been guilty of neglect in suffering goods, upon which the law had given them a spe- cial lien, to go out of their hands without endeavouring to indemnify themselves, by setting up a claim for a general lien. I shall never, unless bound by authority, assent to the doctrine that these general liens are to affect the rights of third persons, not claiming under those from whom the right to the lien is derived. The defendant claims under Wilson, and had no more than a bare authority from him to receive the goods, which authority was dated in Mat/, when there was no suspicion that Wilson was likely to be involved. And though he afterwards forgot to counter- mand this authority, when he had rescinded his contract with the plaintiff, yet the defendant had nothing more than APPENDIX. 71 a bare authority to receive the goods. I am therefore of opinion that he had no right to set up this general lien against the right paramount of the plaintift'. Chamhrey J. If there be any case in which it would be justifiable to strain the law for the purpose of supporting a lien, yet I do not think that there is any reason for doing so in iliis. In the present case Wilson never received the goods : and indeed some days before they came to the hands of the wharfinger he wrote a letter to the consignor, signifying his intention not to receive them, which letter was received by the consignor the day before the goods arrived at the wharf. It has been contended that the transaction is a fraud on the wharfinger : but before fraud can be committed, there must be some right. Now the wharfinger had a mere naked authority : and any disposition made by the person who gave such an authority must put an end to it. It has been argued, that the wharfinger might have extended his credit to Wilson upon the assurance of the arrival of the goods : but that is a speculation which the law does not allow ; for there can be no lien until possession. On the arrival of the goods the wharfinger is put to some trouble and expense, for which he has a lien upon the proprietor of the goods : but the lien now claimed is an extension of that lien ; and if he had had former dealings with Richard- son he might have set up a general lien against him. The lien, whether general or special, must be against the pro- prietor, which in the present case was the plaintiff. Rule discharged. Pyne %\ Erle, 1799, 8. Term Rep. 407.— The plaintiff having recovered a judgment against the defendant for 400/. on a bond, charged iiim in execution in the year 1783, and died in 1797. In this term tlie defendant moved to be discharged out of custody, his wife having taken out administration to the plaintiff. Lawes now 72 APPENDIX. shewed cause against that rule. First, He said that the letters of administration were void, because the defendant's wife, in taking out administration, had sworn that the plaintiflF's effects on\y amounted to 5/., whereas this alone was a debt of 400/. And secondly, he contended, that as the plaintiff's attorney had a lien on the judgment for his costs, the defendant ought not to be discharged out of cus- tody until he was satisfied for his costs. But the court thought there was no foundation for the opposition to the rule. Lord Keiii/on, Ch. J. said, If the administration had been granted by an inferior jurisdiction, and there were ho)ia notahilia out of that diocese, the administration vould liave been \'oid. But this administration, having been granted by the Prerogative Court, is good. If, in- deed, the letters of administration have been obtained by fraud, they may be hereafter set aside on that ground : but at present it is a legal administration ; and that being so, there is an end of this action, the defendant's wife being tlie legal representative of the plaintiff. On the other point, I do not think that the plaintiff's attorney has any lien on the judgment, so as to prevent the defendant being discharged. Rule absolute. Houghton v. Matthe^ws, 1803, 3. Bosanquet and Puller, 48.5. — Trover for a quantity of indigo. This cause was tried before Mr. Justice Booke, at the last Lent assizes at Lancaster, when the following facts ap- peared in evidence : The defendants, who were brokers, had, on the 3rd of September, 1799, sold a parcel of log- wood and fustic to Jackson, the bankrupt, and on the 1 1 th of the same month, a parcel of indigo, neither of which parcels were paid for at the time of Jackson s bankruptcy. The logwood and fustic was the property of a person of the name of Greatkam, and the indigo of a person of the name of Dixon; both these parcels had been put into the APPENDIX. 73 hands of the defendants by the proprietors, to be sold by them as bjokers, and both sales were effected in the names of the brokers only, it being their practice to sell in their own name, where the party for whom they sold was in- debted to them. At the time of such sales, and when this action was commenced, there was a balance due both from GreatJtam and from Dixon to the defendants. Soon after the above sales, Jackson, the bankrupt, put into the hands of the defendants the indigo in question to sell, as brokers ; no advance being made by them upon the indigo, nor any debt existing between the defendants and Jackson, other than what was due to the former for the goods of Great- ham and Dixon, purchased by Jackson of the defendants as before mentioned. Indeed the commission to sell the indigo in question was the first time the latter had ever employed the defendants as brokers. While the indigo in question still remained unsold in the hands of the defen- dants, as brokers, Jackson became a bankrupt. Upon this, the plaintiffs, as his assignees, demanded ihe indigo, and tendered payment of any charges which might have been incurred in respect of that article ; the defendants re- fused to deliver it up, claiming a lien upon it for the debt due from the bankrupt, in consequence of the goods of Greatharn and Dixon sold to him, and which still re- mained unpaid for. The learned judge was of opinion that the defendants had no lien upon the goods in question, and therefore, under his direction, a verdict was found for the plaintiffs, with leave reserved to the defendants to move to set that verdict aside, and have a nonsuit entered. Chambre, J. The question is. Whether when a broker receives goods to sell for A. he is entitled to retain them though unsold, after a tender of all charges due in respect of those goods, on the ground of a lien for the price of other goods sold by him for B. to j4. under a general au- thority from B, to sell, there being no general balance due 74 APPENDIX. from A. to the broker, and the broker not having sold the goods of B. under a del credere commission ? I state the question thus, because I conceive that, in the present case, the mere act of the bankrupt buying goods of the de- fendant did not constitute the relation of principal and fac- tor between them. The demand of the defendant upon the first goods did not arise out of any course of dealing in the relation of principal and factor ; but was as foreign to that relation as if it had arisen upon a legacy, or any other species of debt the most remote from that course of deal- ing. I do not find any authority for saying, that a factor has any general lien in respect of debts which arise prior to the time at which his character of factor commences : and if a right to such a lien is not established by express authority, it does riot appear to me to fall within the gene- ral principle upon which the liens of factors have been allowed. It seems to me that the liens of factors have been allowed for the convenience of trade, and with a view to encourage factors to advance money upon goods in their possession, or which must come to their hands as factors ; but debts which are incurred prior to the existence of the relation of principal and factor, are not contracted upon this principle. And if the lien now contended for were allowed, instead of inducing persons to place goods in the hands of factors, it would operate the contrary way, since it would tend to prevent insolvent persons from employing their creditors as factors, lest the goods entrusted to them should be retained in satisfaction of former debts. If this were the only point in this case, I should be of opinion that the defendants were not entitled to retain : but laying this point out of the question, I still think the debts due from the bankrupt, in respect of the goods sold to him, are not to be considered as due to the defendants, so as to authorize them to set off such debts, in an action brought agamst them by the bankrupt's assignees, and that the de- APPENDIX. 75 fendants have no property or interest whatever in those debts. I never yet heard of a person being allowed to protect himself, by setting up debts in reality due to other persons ; or that a factor, having no demand on his prin- cipal, could, by transactions with a third person, create a new interest in himself. In the case of Drinkwater v. Goodzcin, Lord Mansfield says, *' It shall not be in the power of any man, by his election, to vary the rights of two other contending parties." According to this rule the factor has no right to prejudice the title of his princi- pal. That a factor has a lien for his general balance, is a point too well established to be disputed. The case Kriiger v. Wilcox proves nothing more. Where a factor is in advance for goods by actual payment, or where he sells under a del credere commission, whereby he becomes responsible for the price, there is as little doubt that he has a lien on the price, though he has parted with the pos- session of the goods. If he acts under a del credere com- mission, he is to be considered as between himself and the vendee, as the sole owner of the goods. There is no doubt of the authority of a factor to sell upon credit, though not particularly authorised by the terms of his com- mission so to do ; but if he so sell without a del credere commission, it is well established that he does not become a surety ; the debt is due to the owner of the goods only. Many cases have been cited, which do not appear to me to warrant the inferences drawn from them. In Gonsalez V. Sladen it is said, that if the factor of a person beyond sea buy or sell goods, he may sue or be sued in his own name ; for if he buy, the credit is presumed to be given to him ; and if he sell, the promise is presumed to be made to him. liut where the principal resides abroad, he is presumed to be ignorant of the circumstances of the party with whom his factor deals, and therefore the whole credit is considered as subsisting between the contracting parties. 76 APPENDIX. The sentence in Sailer's nisi prius, immediately following the case of Gonsulez v. Sladen, was not cited. There it is said, that " a factor's sale does, by the general rule of law, create a contract between the owner and buyer ; and therefore if a factor sell for payment at a future day, if the owner give notice to the buyer to pay him, and not the factor, the buyer would not be justified in afterwards pay- ing the factor." The factor, therefore, has no right to consider himself as substantially the creditor of the vendee of the goods ; he has no equity in his favour, and the ac- count is really and truly between the vendee and the prin- cipal. It is true that Mr. J. Buller adds, " yet, perhaps, under some particular circumstances, this rule may not take place, as where the factor sells the goods at his own risk, (i. e. is answerable to the owner for the price, though it be never paid), for in such case he is the debtor to the owner, and not the buyer." Neither the case of Rabone V. Williams, nor that of George v. Clagett, appear to me to have any application to the present. The principle upon which those cases proceeded, is well summed up in Cullens bankrupt laws, viz. that where a party being only an agent, acts ostensibly as the real and sole owner, (as in the case of a factor concealing his principal, or an acting partner his partners), the buyer of goods from him may, in an action by the principal in the one case, or the firm in the other, set off a debt due to him from the factor or acting partner respectively, upon the ground that the par- ties by their conduct, having enabled their agent to gain credit as the sole owner, and the buyer having bona Jide contracted with him in that character, they cannot recover against the buyer, without allowing him the same advantages and equities in his defence that he would have had against their agent. There is a case of Garrett v. Ctillum, Bull,, N. P. p. 42. last Ed. and which is also cited in Scott v. Surmarij Willes, 405. which fully proves the doctrine that the APPENDIX. 77 debt of the vendee is not due to the factor. In that case tlie factor of a person living in Ireland, having sold goods to a person living in Lofidon, without acquainting him with the name of his principal, or acquainting his principal with the name of his vendee, became bankrupt ; after which the vendee paid the money to his assignees ; the principal then brought an action against the assignees and recovered, it being held that though the vendee was discharged by the payment to the assignees, yet the debt was not in law due to them but to the principal, and therefore did not pass under the assigmnent. That case is said in Willes, to have been cited at Guildhall, by Lord Ch. J. Parker, with approbation. These cases appear to me to establish, that where a factor has no special claim on the goods, and he has disposed of them, whereby he has lost the advantage arising from possession, the debt is to be considered to all intents as the debt of the principal, and the factor has no lien on the price. My brother Heywood mainly relied upon the ca^e of Drinkwater v. Goodwin, whereas the court throughout that case evidently proceed on the ground of the factor having given his security for the payment of the goods, and thereby acquired a lien on them in the same way as if he had advanced his money on the goods them- selves. The principle upon which that case was decided is very correct ; but why did the decision proceed upon that principle, unless with a view to distinguish it from cases circumstanced like that now before the court ? It is un- necessary to enter at large into all the positions on this subject, which are laid down in the books ; many of which are very clearly stated in Scott v. Sunnan. It has been * observed, that though a broker does not act under a del credere commission, still he may bring an action in his own name for goods sold by him. This power, however, is in- cident to the nature of his employment, as also that he should be able to give discharges to those from whom he 78 APPENDIX. receives money in payment of goods sold on account of the persons for whom he acts. But these circumstances do not prove that he has any interest in the goods which pass through his hands. How would this case have stood, if the defendants had never become creditors of Greathani and Dixon ? It has not been argued, that in such case there could have been any lien ; and yet how can any right between the defendants and the bankrupt be altered by a subsequent course of dealing between the defendants and third persons? The rights of lien and detention must have existed at the lime when the goods of Greatham and DixoTi were sold to the bankrupt, and cannot be varied by the subsequent conduct of Greatham and Dixon towards the defendants, unless the bankrupt has been privy to their transactions. Under all these circumstances, and finding no authority which warrants the factor in claiming any such lien as is claimed in this case, I must deliver my opinion that the defendants have failed in the defence set up by them, and that as they were fully satisfied all they had a rit^ht to demand, the learned Judge was perfectly correct in his direction to the jury. Rooke, J. This question arises in an action of trover, and must be decided by the rules of law. Cases which have been decided by the Lord Chancellor, on the principles of general equity at the hear- ing of bankrupt's petitions, must not give the rules for our decision in the courts of law. Lord Hardwicke very cau- tiously takes the distinction in two cases, namely Kruger V. Wilcox, Amhl. 253. and Ex parte Deeze, 1 Atk. 228. In the first of these cases he says, " whether this was ever allowed in trover at law, where the goods were turned into money, I cannot say, nor can I find any such case. I have no doubt it would be so in this court, if the goods re- mained in specie, nor do I doubt of its being so where they are turned into money." In the latter case he says, " and here, though there had been no bankruptcy in an action for APPENDIX. 79 these goods, the debt could not have been set cfF ; yet as the clause of mutual credit has been extended, 1 think it may come within that rule." In the case before the court, there is no doubt that the defendants had a lien on the goods sent to them by Dixon and by Greatham, for their general balance while the goods remained in their hands, and if they had received the money for these goods, they might have retained it for the balance due to them. But when they parted with the goods they parted with their lien ; and if they were at that time creditors of Dixon and of Greatham, (which was not directly proved at the trial,) they were on the same footing as the other creditors. Having then a claim on the general effects of Dixon and Greatham, Jackson, to whom they had sold some of their goods, sends them goods to sell, and while these goods remained unsold, becomes bankrupt ; the de- fendants claim to retain these goods for a debt due to Dixon and to Greatham ; because if Jack&on, instead of sending goods to them as factors, to sell for him on his own account, had sent them money to pay for the goods he bought of them, they might have retained the money for debts due to ttiem from the house of Dixon or of Great- ham. The doctrine of liens has already been carried very far, but I cannot find that it has yet been carried so far as to permit a factor to retain for all possible demands which he may choose to make on the goods sent to him. Here the defendants are supposed to have a demand and a right of action against Dixon and against Greatham, who, for aught we know, are each of them solvent. The defen- dants are not answerable to them for the value of the goods sold to the bankrupt, nor have ihey advanced any money on them. The bankrupt is indebted to the house of Dixon and of Greatham, for the price of the goods sold to him on their account by the defendants. The defendants then are middle men, not answerable to Dixon or to Greatham, 80 APPENDIX. and have no claim upon the bankrupt in their own right except for the expenses due on the goods he has sent to them, which expenses have been tendered to them. I doubt (but with great deference to my Lord Chief Justice, who has had so much experience iu Courts of Equity) how far equity would assist such a claim, since it is not necessary to secure the factors themselves, but is set up only for the be- nefit of other persons. I question whether the creditors at large of the bankrupt Jackson, have not an equitable as well as legal claim, equally well founded with that of Dixon and of Greatham. This is an attempt, through the means of these defendants, to give the houses of Dixon and of Greatham a preference above the other creditors. The assignees have made out their case as plaintiffs ; the de- fendants set up this lien by way of defence : it is incum- bent on them to make out a clear case ; they are not en- titled to have presumptions made in their favour ; and the Court can only judge from the facts actually proved by them. On the whole I am satisfied that at law, and in this action of trover the defendants cannot support this claim of a lien. My opinion therefore is, that the rule for a new trial should be discharged. Heath, J. I am of the same opinion with my brothers Rooke and Chambre, who have so fully discussed the principles and authorities re- lating to the subject that it is unnecessary for me to enter into the matter at length. The defendants claim a right to retain the goods in question as brokers, not in respect of any debt due to themselves upon the goods, but in respect of a debt which they say is due from the bankrupt to them, but which, in truth, is due to Greatham and to Dixon. That part of the case has been very satisfactorily argued by my two brothers who preceded me. There are two spe- cies of liens known to the law, namely particular liens and general liens. Particular liens are where persons claim a right to retain goods in respect of labour or money expended APPENDIX. 81 upon them ; aud those liens are favoured in law. Ge- neral liens are claimed in respect of a general balance of account; and these are founded in custom only, and are therefore to be taken strictly. There is no authority to shew that such custom has ever been extended to debts generally ; and the opinion of Lord Hardwicke, in Ex parte Deeze, which is one of the first cases in which a party was allowed to retain for a general balance, seems directly to the contrary. From the report of that case in 1 Atk. 229, it appears as if the decision had been founded on the 2 Geo. 2. respecting mutual credits ; but that re- port is not correct ; for in Ex parte Ockenden, I Atk. 237, Lord Hardzaicke, speaking of the case Ex parte Deeze, says, " there was evidence that it was usual for packers to lend money to clothiers, and the clothes to be a pledge not only for the work done in packing, but for the loan of money likewise." In that case, therefore, a right was claimed to retain for a general balance of accounts, Deeze having been a creditor of the bankrupt for money advanced to him as a packer and merchant, antecedent to the time of the particular goods being put into his hands. From the expression of Lord Hardzvicke also, 1 Atk. 229 these goods were in the petitioner's hands as a pledge for some part of his debt, namely, the price of the packing ; *' and what right has a Court of Equity to say, that if he has another debt due to him from the same person, the goods shall be taken from him without having the whole paid ?" we may collect that he did not think the petitioner entitled to retain for the whole, independent of the custom. The case of Drinkwater v. Goodicin, proceeded on a special agreement independent of the custom. The agree- ment was stated and relied on ; and Lord Mansjifld says, " the agreement therefore is, that he shall have a lien." There is no authority therefore for the position, that a fac- tor may retain goods iti his hands in respect of all debts G 82 APPENDIX. whatsoever ; and there is a rule of law which has not been touched upon in argument, and which appears to me de- cisive of the contrary, namely, that nothing can fall within the custom of trade but what concerns trade. Collateral obligations therefore, such as money due for rent, are not within the custom which authorizes a factor to retain for a general balance. Lord Alvanley, Ch. J. When this motion was first made, 1 am inclined to think my brother Rooke's direction proper ; but having heard the argument and looked further into the question, 1 find myself under the necessity of ditfering from my brothers so far, as to think that a verdict ought not to be entered for the plain- tiff on the facts stated in the report. Farther than that however 1 do not go. I am by no means prepared to say, that a verdict ought to be entered for the defendant ; for 1 think that if a new trial were granted, some facts might be established which are now equivocal, and which would give rise to a question of so much importance, that 1 should wish to take more time for consideration before I decided against the defendant's right to a lien. It was not dis- tinctly proved at the trial, that Greatham and Dixon were indebted to the defendants, but we must suppose that fact capable of proof. If, however, the fact itself would make no difference in the determination of the court, there is no reason for sending the case to a new trial in order to have it found. At present, therefore, 1 must suppose that the case affords sufficient ground to infer that Greatham and Dixon were indebted to the defendants. These persons then having put goods into the hands of the defendants, with authority to sell them in their own names, and conse- quently to bring actions and give receipts for the money ; and the defendants having accordingly executed their com- mission by selling in their own names, and Greatham ana Dixon being still in their debt, the defendants acquired a right to demand the value of the goods from the persons APPENDIX. 83 to whom they were sold. The cases cited have, I think, decisively proved that point. Nor does it make any differ- ence, whether the goods were sold under a del credere commission or not. The only effect of a del credere com- mission, is to make the factor responsible for the value of the goods to his principal. If the factor, without such a commission, sell the goods in his own name, he may bring an action for the value ; and if the principal bring the ac- tion, the vendee may set off a debt due to him from the factor. The factor, therefore, being authorized to bring an action for the value of the goods, may retain the whole amount in satisfaction of the debt due to him from his principal. We are to consider then, in the lirst place, what relation was created between these parties, by those circumstances which took place subsequent to the sale of the goods belonging to Greatham and Dixon; remem- bering that at the time of that sale, the defendants were the factors of Greatham and Dixon only, and not of the bankrupt. That subsequent to that period, and while the bankrupt still remained indebted for the goods of Great- ham and Dixon, which he had received from the defen- dants, he sends the goods in question to the defendants, to be sold by them as his brokers, knowing that he stood in- debted to them for the goods of Greatham and Dixon, though he did not know but that the defendants themselves were the proprietors of the goods, the names of Greatham and Dixon not having been communicated to him. Con- sequently the bankrupt must have considered his debt as due to the defendants ; and the moment he sent goods to them as brokers, their right of lien attached upon the goods. If the defendants had sold the goods, it is clear that they might have applied the money arising out of the sale in discharge of the debt due from the bankrupt, on account of the goods of Greatham and Dixon ; and how do we know that they did not forbear to sell, because they (; 2 84 APPENDIX. considered the goods as a security for that debt ? What- ever may be the case with respect to other trades, it is not now denied that a factor has a right to retain for the gene- ral balance of his account. If a debt be due from the principal to the factor, antecedent to the time of the par- ticular goods being put into the hands of the latter, he is entitled to retain them as a security. And if a man com- mence dealing with a factor, to whom he is indebted on bond, I am not prepared to say that the lien of the factor would not attach upon such debt. In the present case, however, the goods of Greatham and Dixon were sold by the defendants as factors, and the debt therefore arose in the ordinary course of their dealing as factors. The case of Dmikwater v. Goodwin was, I admit, the case of a particular contract, but the principle of the decision was, that if a factor become surety for his principal, he has a lien to the amount of the sum for which he becomes surety. The case of Grove v. Dubois establishes, that a broker acting under a del credere commission, may set oflf against his principal the amount of losses incurred; and the cases of George v. Clagett, and Rabone v. Williams shew, that if a factor sell the goods of his principal in his own name, the buyer may set off against the principal a debt due from the factor. It appears to me, therefore, that a factor who sells in his own name, stands in the same situation with respect to lien as if he had a del credere commission. I do not wish to be bound by my present opinion, but as the case strikes me, the present defendants are warranted, by the custom of merchants, in claiming a lien upon the goods now sued for. It is contended, that the defendants only set up this lien with a view to protect Greatham and Dixon. But I cannot assent to a propo- sition which assumes that Greatham and Dixon are sol- vent. The presumption rather is that they are insolvent, since they have not paid the debt due from them to the APPENDIX. 85 defendants ; and the question is. Whether the latter are not justified in retaining the goods in their hands, as a security against the insolvency of their debtors ? With respect to the authority of the cases which have been cited from the Court of Chancery, it is true that courts of equity, in ad- ministering justice, sometimes go further than the courts of law. But it is clear that the Lord Chancellor has no authority to screen goods in the hands of a factor, with a view to distribute them in equity according to a different course from that which prevails at law ; and if Lord Hard- wicke had entertained any doubts upon the rule of law, he would certainly have taken the opinion of some common- law court. I can hardly conceive the case Ex parte Deeze to be well reported : for, according to the report, Lord Hardwicke seems to suppose that in cases of bankruptcy, if a person has a lien to a certain amount, there is no harm in giving him a lien to the whole amount of his claim. But to such a proposition no lawyer can assent. The other ground of determination supposed to have been stated by his Lordship, namely, the clause of mutual credit, cer- tainly cannot be sustained. The decision therefore must rest upon the ground of lien ; and in the subsequent case Ex parte Ockenden, Lord Hardwicke states the real prin- ciple upon which the case Ex parte Deeze must have pro- ceeded ; for he says " in the case Ex parte Deeze, there was evidence that it was usual for packers to retain not only for work done, but for money lent." These cases were followed by some other determinations in equity, which I do not think it necessary to mention, as there are cases at law. In Green v. Farmer, 1 Black. 652. 4 Bur. 2221, Lord Mansfield says, "the convenience of com- merce and natural justice are on the side of liens, and therefore of late years courts lean that way." He then states, that lien may arise not only from express contract, or where the party has acted as a factor, but that it may 86 APPENDIX. be implied from the usage of trade, or from the manner of deaUng between the parties in the particular case. Indeed he considers Lord Hardwicke as having decided the case Ex parte Ockenden (which at first view seems not so fa- vourable to liens as his opinion in JEx parte Deeze) on the special ground that there was no room to imply a lien, from the usage of trade or the particular manner of deal- ing. The case of Kruger v. Wilcox had before establish- ed, that if there be a course of dealings and general ac- count between a merchant and a factor, and a balance is due to the factor, he may retain the ship and goods, or produce, for such balance of die general account; it is considered as an interest in the specific things, and they are made articles in the general account. In that case Lord Hardwicke speaks oitly of a foreign factor, but there is no doubt that a home factor is entitled to the same lien, though the lex mercatoria seems to found the origin of the custom on the merchant residing abroad. Kruger v. Wil- cox is recognised in Foxcroft v. Devonshire, 1 Bur. 937' and in Walker v. Birch, 6 T. R. 262. Lord Ketiyon con- siders the factor's right to his lien for a general balance as so long settled, that it ought not to be brought into dis- pute ; he says it is an agreement which the law implies. The opinion indeed of Mr. Justice Lawrence in that case, may seem to support the opinion of my brothers ; for he says, that the doctrine of lien only applies to cases where the goods have been deposited in the iiature of a pledge ; that the persons for whom the lien was then claimed, never acted as the brokers of their principal before the transac- tion in question, and consequently that the goods could not be considered as deposited with the former as a general pledge. The question, however, is. Whether a factor be not that sort of person that all goods which come into his hands are to be considered as cloathed with a lien for his general balance ? In Co. Bank. Law. p. 455, Ed. 1797? APPENDIX. a? it is laid down, that where one has acted as factor for ano- ther, every thing in his hands is construed to be a pledge not onl)' for incidental charges, but as an item of mutual account for the general balance due to him. The only point in difference between my brothers and niyself is. Whether this debt due on account of the goods sold for Greatham and Dixon, be such a debt as can be brought into a mutual account between the defendants and the bankrupt ? I am not desirous of favouring liens to so great an extent as has been done by the courts of late ; for we know it has been determined, that the members of any trade may, by agreement among themselves, obtain the benefit of that sort of lien to which a factor is entitled by the general law. I am sorry the courts have gone so far. In this case, however, I feel that the defendants are iu possession of a principle of law, which has never been denied, and that being commissioned by another to sell goods for him, they acquired a right to retain those goods in satisfaction of any demands which might be due to them from the person who sent the goods. The moment the goods were sent, the relation of principal and factor arose; and when that relation commenced, the right to a general lien attached. 1 desire not to be considered as giving a positive opinion ; but my doubts incline me to think that the court is justified in entering a verdict for the plaintiffs. . Rule discharged. Furlong v. Howard, 1804, 2. Schoales & Le- FROY, 115.— It was moved on the part of the planitiff, that defendant should produce a certain deed, stated to be in his possession. Mr. Burue opposed the motion, on the ground that the deed in question was in the possession of the solicitor for the defendant, who had a lien on it for his costs.^ Lord Chancellor. Though a solicitor may have a lien on a deed for his costs, yet if his client is bound to 88 APPENDIX. produce it for the benefit of a third person, so also must the solicitor. I know this is not so understood in general; but the common opinion, that the solicitor may withhold it from all parties, in such a case is erroneous. The right is only as between his client and him. Ex PARTE NeSBITT, 1805, 2. SCHOALES &, Le- FROY, 279. — It was moved, on behalf of assignees, to oblige a solicitor to deliver up papers, on which he claimed to have a lien for costs ; stating that the papers had come into his hands, not in the cause in which he makes a charge for costs, but in another. Lord Chancellor. If the papers came into his hands in the character of attorney or solicitor, for the purpose of business, though they did not come into his hands in the particular cause in which he makes the demand of costs, he has a lien. It depends on the practice. The practice is, that the attorney should have the lien ; and that being once established, he trusts to it, and on the faith of it, makes larger advances for his client in other causes. If, indeed, a tenant for life gives deeds into an attorney's hands, the attorney has no lien on them for his costs against the remainder man: for that would be to enable a tenant for life to charge the remainder man. Butler v. Woolcott, 1805, 2. Bosanquet 8c Puller, 64. — This was an action of trover brought to recover the value of a quantity of butter, which came on to be tried at the sittings after last Hilaiy term before Sir James Mansfield, Ch. J., when a verdict was found for the plaintiff for the sum of 17/. 12s. Qd., subject to the opinion of the court upon the following case : — The plain- tiff was a cheesemonger in London, and the defendant the proprietor of a public waggon for the carriage and convey- ance of goods from Sherborne in Dorsetshire to London. APPENDIX. 89 For some years previous to June, 1803, the plaintiflF had dealt for butter with a person of the name of Jolni Ensor, who was a butter factor and dealer in that commodity re- siding in Sherborne. Ktisor generally sent butter every week to the plaintiff in London by the defendant's waggon, and the tubs and firkins were marked with the letter B, (the initial of the plaintiff's surname). A bill of parcels or invoice was also usually sent by Ensor of the quantity, with a letter of advice to the plaintiff, upon the production of which to the bookkeeper or other persons employed by the defendant to conduct the business of the waggon in London, the butter had always been delivered to the plain- tiff. Upon the butter being delivered to the defendant's waggon at Sherborne, Ensor used to draw bills on the plaintiff for the amount of the goods so sent, which bills were regularly honoured and paid by the plaintiff. On the loth of Jut2e, 1803, Ensor sent up from Sherborne to the plaintiff by the defendant's waggon six firkins of butter, regularly invoiced, and marked with the letter B. : and on the i6th of the same month he sent a letter of ad- vice, and the invoice or bill of parcels of the said butters to the plaintiff by the post ; and at the same time drew a bill according to their usual and accustomed mode of deal- ing for 100/. at 30 days after date, which included in it the value of the six firkins of butter then sent. The bill was immediately accepted by the plaintiff, and afterwards paid by him when it became due. The goods arrived safe in the defendant's waggon in London, and the plain- tiff demanded the goods oi the defendant's agent or book- keeper, and produced the bill of parcels and letter of ad- vice, and tendered the money for the carriage, and all other charges on the six firkins ; but Ensor having become bankrupt before the goods arrived in London, and he being indebted to the defendant in 55l. for the carriage of other butters to London, the defendant's agent, by his go APPENDIX. authority, refused to deliver to the plaintiff the butters in question, insisting that he had a right to detain them for the general balance due from Ensor to him. It is the established custom and usage for the butter- dealers at Sherborne, unless there is some express agreement to the contrary with the buyers of butter, to pay the carriers for the carriage of all butters sent by them to those with whom they deal in London. All the former parcels of butter consigned by Ensor to the plaintiff, and conveyed by the defendant's waggon to the plaintiff, had been delivered to him on their arrival in London on demand, without making any charge whatsoever on the plaintiff for carriage ; such charges for carriage being regularly carried to the account of Ensor, with whom the defendant kept a running account for that purpose, and no agreement or understanding what- soever existed between the plaintiff and Ensor that the plaintiff was to pay the carriage for the butter, but on the contrary Ensor, according to the custom, was to pay it. The question for the opinion of the court was, Whe- iher, under the circumstances of the goods in question having been paid for by the plaintiff to Ensor as before stated, and the plaintiff having afterwards tendered the amount of the charges and carriage of the goods to the defendant, he was entitled to recover in this action ; — or, whether the defendant had a right to retain those goods for a former demand contracted widi him by Ensor for the carriage of other goods ? Best, Serjt. being called upon by the court to begin in support of the defendant's right to retain the goods in question against the consignee for his general balance from the consignor, contended, that the right of the carrier to retain against the consignor being now established, (and for which he referred to Aspi- nall v. Pickford, 3. Bos. & Pull. p. 44. n. a.) that right must be in respect of the goods put into his hands by the consignor, and must arise the instant the goods come into APPENDIX. 91 his hands, and previous to any rights of the consignee : that the rights of the consignee and the carrier being de- rived from the sannie source, and the carrier's right being accompanied by actual possession, the latter ought not to be deprived of his advantage without payment of the ba- lance due to him from the consignor. He observed, that the case of Oppen/ieim v. Russell, 3. Bos. & Pull. 42, was mainly distinguishable from the present, because it was decided on the ground of the consignor's right to stop in transitu being prior and paramount to the carrier's right to retain as against the consignee. But the court (without hearing Shepherd, Serjt. e contra) were clearly of opinion, that the defendant's claim to retain for the debt of the consignor could not be supported as against the con- signee, whose property the goods were from the moment of delivery to the carrier. Judgment for the plaintiff, RusHFORTH V. Hadfield, 1805, 6. East, 519. — This was an action of trover to recover the value of a parcel of goods belonging to the bankrupts before their bankruptcy, and sent on their account to be carried by the defendants, common carriers, from Ellen and to Loudon, and which were detained by the defendants after tender of, and refusal by them to accept, the price of the carriage of such goods until a balance of 78/. 15s. 7d. due to them from the bankrupts for the carriage of other goods at other times was paid. And the question was, Whether the defendants, as common carriers, had a lien on the goods for their general balance. At the trial before Gra- ham, B. at the last assizes at York, the defendants' counsel offered evidence to shew that by the usage of trade tlirough- out the realm common carriers had a right to retain parti- cular goods beh)nging to a party for their general balance ^ue from the same party for the carriage of other goods belonging to him. On the part of tlie plaintiffs it was 92 APPENDIX. objected, that this evidence did not prove a general usage of the trade : but the learned judge thought that, being uncontradicted, it admitted of that conclusion ; and there- fore he directed the jury, that if they found that such was the general undisputed usage, it established the right of the carriers ; and they thereupon found a verdict for the defen- dants ; which was moved to be set aside in the last term as a verdict against law and evidence. Lord Ellenbo- rough, Ch. J. There was no sufficient evidence on which the jury could find any such general usage as would war- rant the conclusion of an agreement between the parties to adopt it. The lien claimed by the carriers for their ge- neral balance is not founded in the common law ; for by the custom of the realm a common carrier is bound to carry the goods of the subject for a reasonable reward to he therefore paid, by force of which he has a lien only for the carriage price of the particular goods. Then what proof is there of any further lien by usage ? I will not say that there may not be sufficient evidence of such a ge- neral usage for the carrier to let out of his hands the par- ticular parcel on which his common law lien attaches, without receiving the carriage price of it at the time, upon a general agreement, of which such usage would be evi- dence, that he may retain any other parcel belonging to the same party for the whole of his demand : but such a general usage ought to be proved by stronger evidence than was offiired in this case, especially as it trenches upon the common law right of the subject. But if there be a General usage of trade to deal with common carriers in this way, all persons dealing in the trade are supposed to contract with them upon the footing of the general prac- tice, adopting the general lien into their particular con- tract. The case, however, does not appear to have gone to the jury on this view of it. There had been previous dealing between these parties, and there might have been APPENDIX. 93 evidence to shew, if such had been really the case, that it was understood between them that the carriers were to have a lien on any parcel of goods in their hands for the carriage price of those which had been antecedently deli- vered : but that was not resorted to, but it was left to the jury as a case turning on the general usage of carriers throughout the realm to have a lien for their general ba- lance, without any sufficient evidence before them to war- rant them in drawing so extensive a conclusion. The oldest instance which could be particularized was not above five years ago, and but one instance, and that only two years ago, of the exercise of the claim to any considerable amount, so as to make it worth while to resist it. To justify however so extensive a claim upon the ground of general usage, there ought to be evidence of instances more ancient, more numerous, and more important. Grose, J. I should object to making a precedent in a case of this $ort, where a general conclusion is to be drawn from such insufficient premises. A carrier may have a lien either at common law for the carriage of the particular goods ; upon which there is no question ; or it may arise out of the usage of trade ; or by a particular contract between the parties concerned. If it could be claimed by the ge- neral usage of trade, I should rather have thought that it should have been coeval with the common law liability of the carrier : but at any rate there was no evidence here sufficient to warrant the jury in finding any such general usage of trade. And as to any lien in respect of a parti- cular contract, it was not left to the jury on that ground. Lawrence, J. I agree that there ought to be a new trial. Common carriers are every day attempting to alter the situation in which they have been placed by the law. At common law they are bound to receive and carry the goods of the subject for a reasoaabie reward, to take due 94 APPENDIX. care of them in their passage, and to deliver them in the same condition as when they were received : but they are not bound to deliver them without being paid for the car- riage of the particular article, and therefore they have a lien to that extent. Of late years, however, they have been continually attempting to alter their general character by special notices on the one hand to diminish their liabi- lity, and on the other hand, by extending their lien. But what evidence have we in this case to say that their com- mon law situation is altered? To do that, it must be shewn that both parties have consented to the alteration : the carrier cannot alter his situation by his own act alone. It is said that a general lien is convenient to the parties concerned : I do not say that it may not be so ; but it must arise out of the contract of the parties. It may be convenient enough for the customer to say, that in conside- ration that you, the carrier, will give up your right to stop each particular parcel of goods for the price of the car- riage, I will agree that you may stop any one parcel of my goods for the carriage price of all together. But still this must be by contract between them ; and usage of trade is evidence of such a contract. And where such a usage is general, and has been long established so as to afford a presumption of its being commonly known, it is fair to conclude that the particular parties contracted with refe- rence to it, then if in this case there had been evidence of a usage so uniform and frequent as to warrant an infe- rence that the parties contracted with reference to it, it should have been left to the jury to infer that it was part of their contract. Le BlatiCy J. I doubt whe- ther the jury had this case presented to them in the true light in which by law it should have been; for it was left to them to find for the defendants upon the bare ground of there being evidence of a general usage amongst APPENDIX. 95 carriers to retain for their general balance ; but no usage of carriers would be sufficient to bind other parties, unless it were so general as to furnish an inference that the party who dealt with a carrier had knowledge of it, and so to warrant a conclusion that he contracted with the carrier on that ground. General liens are a great inconvenience to the generality of traders, because they give a particular ad- vantage to certain individuals who claim to themselves a special privilege against the body at large of the creditors, instead of coming in with them for an equal share of the insolvent's estate. All these general liens infringe upon the system of the bankrupt laws, the object of which is to distribute the debtor's estate proportionably amongst all the creditors, and they ought not to be encouraged. But 1 do not mean to say that a usage in trade may not be so general and well established as to induce a jury to believe that the parties acted upon it in their particular agreement; and I cannot say that such an agreement would not be good in law, although a carrier might have no right to refuse carrying goods for another without an agreement that he should have a lien for his general balance ; for that would be contrary to the obligation which the law has imposed on him. The instances of detainer by car- riers for their general balance which were proved at the trial were very few and recent with a view to found so extensive a claim ; and the instance where goods of the value of 10,000/. were detained for 130/. does not appear to me to assist the claim ; for the parties would naturally rather pay 130/., the amount of the balance due to the carrier, than have goods of such great value detained from them till the question were decided at law. Without say- ing, therefore, that there may not be such a usage as that insisted on, I am clearly of opinion that there should be a new trial in order to have the case submitted to the jury 96 APPENDIX. on its true ground, which it does not appear to have been upon the last trial. Rule absolute. Hanson v. Meyer, 1805, 6. East, 614. — Trover to recover 33 cwt. I qr. 21 lb. of starch. A verdict for the defendant. The court ordered a case as follows : The plaintiffs are assignees of J. Wallace and W. Hawes, under a commission of bankrupt issued against them. The defendant is a merchant in London. In January, 1801, the bankrupts employed If right, their broker, to purchase of the defendant a quantity of starch, about four tons, be- longing to the defendant, and which was then lying in the Bull Porter's warehouse in Seething-lane ; and Wright accordingly purchased the starch of the defendant at 6/. per cwt., and sent to the bankrupts, his principals, the fol- lowing note : " Dear Sirs, I have bought that small parcel of starch which you saw of Mr, James Meyer for your account, 61. per cwt. by bill at 2 months ; 14 days for delivery from the 14th instant." " Jan. 15th, 1801- Yours, &c. r. Wright." The starch lay at the Bull Porter's. The broker purchased for the bankrupts all Meyer's starch that lay there, more or less, whatever it was, at 6/. per hundred weight : it was in papers : the weight was to be afterwards ascertained at the price afore- said. The mode of delivery is as follows : the seller gives the buyer a note addressed to the warehouse-keeper, to weigh and deliver the goods to the buyer. This note is taken to the warehouse-keeper, and is his authority to weigh and deliver the goods to the vendee. The following note was given by the defendant: " To the Bull Porter's, Seething-lane." " Please to weigh and deliver to Messrs. Wallace and Hawes all my starch." " Jan. 17th, 1801. Per James Meyer, William Elliott." This order was lodged by the bankrupts at the Bull Porter's warehouse APPENDIX. 97 on the 21st of January, 1801, on which day the bankrupts required the Bull Porters to weigh and deliver to them 540 papers of the starch, which weighed Cwt. qr. lb, 21 1 6 And on the 31st Jan. 250 9 1 20 And on the 2d Fe6. 400 15 1 4 iiyo 46 12 At which respective times the Bull Porters, in conse- quence of their order, weighed and delivered the sanie to the bankrupts, who immediately removed the same : the residue thereof, being 33 cwt. 1 qr. 21 lb. remuined at the Bull Porters' warehouse till the failure of Wallace and Hawes. The above quantities of starch continued at the Bull Porters' warehouse in the name and at the expense of the defendant till ihey were weigiied and delivered : and the residue also afterwards continued there in like manner unweighed, in his name, and charged to his expense. On the 8th of February, 1801, Wallace and Hawes became bankrupts. It was admitted that the defendant, after the bankruptcy, took away the remainder of the starch that had not been so weighed. The question for the opinion of the court was, Whether the defendant were entitled to the above verdict ? If the court should be of opinion that he was, then the verdict was to stand : if not, then a new trial was to be granted upon such terms as the court should direct. Lord Ellenborougli, Ch. J. now delivered judg- ment. By the terms of the bargain formed by the broker of the bankrupts on their behalf, two things, in the nature of conditions or preliminary acts on their part, necessarily preceded the absolute vesting in them of the property con- tracted for ; the first of them is one which does so accord- ing to the generally received rule of law in contracts of sale, viz. the payment of the agreed price or consideration for the sale. The second, which is the act of neighing u 98 APPENDIX. does so in consequence of the particular terms of this con- tract, by which the price is made to depend upon the weight. The weight, therefore, nnist be ascertained in order that the price may be known and paid : and unless the weighing precede the delivery, it can never, for these purposes, effectually take place at all. In this ca!?e a par- tial weigliing and delivery of several quantities of the starch contracted for had taken place ; the remainder of it was unweighed and undelivered ; and of course no such bill of two months for the price so depending on the weight could yet be given. The question is, What is the legal effect of such part-delivery of the starch on the right of property in the undelivered residue thereof? On the part of the plaintiffs it is contended, that a delivery of part of an entire quantity of goods contracted for is a virtual deli- very of the whole, so as to vest in the vendee the entire property in the whole ; although the price for the same should not have been paid. This proposition was denied on the part of the defendant ; and many authorities have been cited on both sides. But, without deciding at pre- sent what might be the legal effect of such part-delivery in a case where the payment of price was the only act neces- sary to be performed in order to vest the properly ; iu this case, another act, it will be remembered, was necessary to precede both payment of price and delivery of the goods bargained for, viz. weighing. This preliminary act of weighing it certainly never was in the contemplation of the sellers to wave in respect of any part of the commodity contracted for. The order stated in the case from the de- fendant to the Bull Porters, his agents, is, to weigh and deliver all his starch. Till it was zseighed, they, as his agents, were not authorized to deliver it : still less were the buyers themselves, or the present plaintiffs, their assignees, authorized to take it by their own act from the Bull Por- ters' warehouse : and if ibey could not so take it, neither APPENDIX. 99 can they maintain this action of trover founded on such a supposed right to take, or, in other words, founded on such a supposed right of property in the subject-matter of this action. If any thing remain to be done on the part of the seller, as between him and the buyer, before the com- modity purchased is to be delivered, a complete present right of property has not attached in the buyer ; and of course this action, which is accommodated to and depends upon such supposed perfect right of property, is not main- tain;! ble. The action failing, therefore, on this ground, it is unnecessary to consider what would have been the effect of non-payment of price on the right to the undelivered residue of the starch, if the case had stood merely on that ground, as it did in the case of Hammond and Others against jinderson, 1 . Nrno Hep. 69. ; where the bacon sold in that case was sold for a certain fixed price, and where the weighing, mentioned in that case, was merely for the buyer's own satisfaction, and formed no ingredient in the contract between him and the seller; though it formed a very important circumstance in the case, being an unequivocal act of possession and ownership as to the whole quantity sold on the part of the buyer. In like manner as the taking 800 bushels of wheat out of the whole quantity sold, and then on board the ship, was holden to be in the case of Slubei/ v. Heywood, 2. //. Bl. 504. Without, therefore, touching the question which has been the main subject of argument in this case, and upon which my opinion at nisi prius principally turned, and without in any degree questioning the authority of the above mentioned two cases from the Common Pleas, this verdict may be sustained, on the ground that the weighing which was indispensably necessary to precede the delivery of the goods, inasmuch as it was necessary to ascertain the price to be paid for tliem, had not been performed at the time when the action was brought. The verdict thcrc- 11 ^ lOO APPENDIX. fore must stand, and judgment be entered for tlie defen- dant. M'CoMBiE V. Davies, 1805, 7. East, 5.— This action of trover for tobacco having gone to a second trial, iu consequence of the opinion of the court delivered in Trinity term last, when it was considered that the defen- dant's taking an assignment of the tobacco in the king's warehouse by way of pledge from one Coddan, a broker, who had purchased it there in his own name for his prin- cipal, the plaintiff, (after which assignment the tobacco stood in the defendanl's name in the warehouse, and could only be taken out by his authority,) and the defendant's re- fusing to deliver it to the plaintiff after notice and demand by him, amounted to a conversion. The defence set up at the second trial was, that the plaintiff being indebted to Coddan, his broker, in 30/. on the balance of his account ; and he having a lien upon the tobacco to that amount while it continued in his name and possession, the defendant who claimed by assignment from Coddan for a valuable consideration, stood in his place, and was entitled to retain the tobacco for that sum ; and therefore that the plaintiff not having tendered the 30/. ought to be nonsuited. Lord E/lenborough, Ch. J., however, being of opinion that the lien was personal, and could not be transferred by the tor- tious act of the broker pledging the goods of his principal, the plaintiff recovered a verdict for the value of the to- bacco. The Solicitor-General now moved to set aside the verdict, and either to enter a nonsuit or have a new trial ; upon the ground that the defendant, who stood in the place of Coddan, and was entitled to avail himself of all the rights which Coddan had against his principal, could not have the goods taken out of his hands by the principal without receiving the amount of Coddan s claim upon them. And in answer to the case of Daubigny v. APPENDIX. JOl Duva/y (which was suggested as establishing a contrary doctrine) he observed that Lord Keuyon was of opinion at the trial, that the principal could not recover his goods from the pawnee, to whom ihey had been pledged by the factor, without tendering to the pawnee the sum advanced by him, which was within the amount of the factor's lien upon the goods for his general balance ; and that his lord- ship seemed to retain that opinion when the case was moved in court, though the rest of the bench differed from him. But Lord El/enborough, Ch. J. said, that nothing could be clearer than that liens were personal, and could not be transferred to third persons by any tortious pledge of the principal's goods. That whether or not a lien mi^ht follow goods in the hands of a third person to whom it was delivered over by the party having the lien, 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 possession ; yet it was quite clear that a lien could not be transferred by the tortious act of a broker pledging the goods of his principal, which he had no authority to do. That in Duubigny v. Duval, though Lord Keuyon was at first of opinion that there ought to have been a tender to the pawnee of the sum for which the goods had been pledged by the factor, within the extent of his lien, in order to entitle the plain- tiflf to recover ; yet, after the rest of the court had ex- pressed a different opinion, on which he at that time only staled his doubts, he appears in the subsequent case of Sweet and another, Assignees of Gard v. Pyrn, to have fully acceded to their opmioii ; for he there states, that " the right of lien has never been carried further than while the goods continue in the possession of the party claiming it." And afterwards he sa)s, " In the case of Kinlocli V. Craig, where 1 had the misfortune to differ from n)y brethren, it was strongly insisted that the right of 102 APPENDIX. lien extended beyond the time of actual possession : but the contrary was ruled by this court, and afterwards in the House of Lords." His Lordship then, after consulting with the other judges, declared that the rest of the court coincided with him in opinion, that no lien was transferred by the pledge of the broker in this case : and added, that he would liave it fully understood that his observations were applied to a tortious transfer of the goods of the principal, by the broker undertaking to pledge them as his own ; and not to the case of one who intending to give a security to another to the extent of his lien, delivers over the actual possession of goods, on which he has the lien, to that other, with notice of his lien, and appoints that other as his servant to keep possession of the goods for him; in which case he might preserve the lien. Rule refused. KusHFORTH V. Hadfield, 1806, 7. East, 224. — This cause was again tried at the last assizes at York, be- fore Cliambre, J., when the defendants' book-keepers in Loudon, at Stumford, and at Haddersfield swore to their practice to retain goods for their general balance, and par- ticularized one instance in December, 1799, \^here an ac- tion was brought, which being referred, was decided on another point : a second in ilioy, 1 800, where there w as no bankruptcy : a third in 31a t/, 180^, where the bank- rupt's assignee demanded the goods, but afterwards paid the balance : a fourth and a fifth in the same year, when the individuals paid the balance, but no bankruptcy inter- vened : and a sixth instance of the like sort as the last in J 804. Ill addition to these, Welch, a carrier from Man- chester and Leeds, deposed to an instance of retention of goods for the getieral balance three years back, where a bankruptcy intervened, and the assignees dii-puttd the pay- ment at first, but afterwards paid the balance ; and to two APPENDIX. 103 other instances of goods sent to Glasgow; one where the carriage of the particular goods was 3/. and the general balance 20/. ; auoihtr where the carriage was a few shil- lings, and the general balance 8/. ; in both instances bank- rnptcies inteiventd, and the assignees paid the general ba- lance Ilufi/ei/, a \uithal(eitou carrier, spoke to two in-tances of rtta:nir of goods \'i and 13 years ago, till llie individuals paid the general balance; but neither were bankrupts. The book-keeper of Pickjord, a carrier from Lofulun to Liverpool J particularized an instance of retain- ing for ihe general balance in 1792, where the vendee be- came bankrupt; but there the vendor stopped in transitu, and he paid the general balance at the end of two months : a second similar instance in the same year: a third instance in 1795, uliere the senders became bankrupts, and their general balance was paid by the vendees: a fourth in 1795, where the goods of an individual, not bankrupt, were de- tained several years ; but no account how the matter was finally settled : and two otlier like instances in 1794 and 1795. And CA/;A% a Leicesler carrier, also mentioned two instances, one in 1775, the other aAerwards, of re- taining the goods of solvent individuals till they pasd their general balance. All these carriers, who hud followed their occupation from 20 to 30 years and upwards, de- posed generally to their custom of retaining goods for their general balance in other instances as well as in those parti- cularized. It was left to the jury to decide whether the usage were so general as to warrant them in presunung that the bankrupts knew it, and understood that they were contracting with the delendants in conformity to it ; in which case they were to find for ihe defendants : otherw ise they were told, that the general rule of law would entitle the plaintiffs to a verdict. On this direction the jury found lor the plainlitls; which was moved to be set aside zu last Michaeltnus term, as a verdict against all the evi- 104 APPENDIX. dence. Lord E/lenhorough, Ch. J. It is too much to say that there has been a general acquiescence in this claim of the carriers since 1775, merely because tliere was a particular instance of it at that time. Other instances were only about 10 or 12 years back, and several of them of very recent date. The question, however, results to this, V^ hat was the particular contract of these parties? And as the evidence is silent as to any express agreement between them, it must be collected either from the mode of dealing before practised between the same parties, or from the general dealings of other persons engaged in the same employment, of such notoriety as that they might fairly be presumed to be known to the bankrupt at the time of his dealing with the defendants, from whence the inference was to be drawn that these parlies dealt upon the same footing as all others did, with reference to the known usage of the trade. But at least it must be admitted, that the claim now set up by the carriers is against the general law of the land, and the proof of it is, therefore, to be re- garded , 13. Vesey, 59- — A peiilion, presented by the toliciturs of Robert Paris Tay- APPENDIX. 107 lor, deceased, stated various proceedings in these suits ori- ginal!) instituted in tlie years 1777 and 1778, upon the affairs of Peter Tat^lor, deceased, the father of Robert Paris Taylor ; in the course of which, by the exertions of the petitioners, as sohcilns of Robert Paris Tai/lur, a considerable demand on liis behalf was established against the estate of his hi! her on account of various dealings be- tween them in the German war of 1757 ; and by an order, dated Isi of August, l?*)!, an aj^propriatioti was made out of the assets of Peter Taylor to answer various sums reported due to Robert Paris Tayhr ; the amount of which was directed to be laid out in bank 3 per ceut. an- nuities, and placed to the account of Robert Paris Taylor: but a claim having been made by the executors of Lord Holland of 28, 18o/. 9s. ^d. as due from Robert Paris Tayfor to the estate of Lord Holland, for which, they contended, Peter Taylor's estate was liable, in respect of bonds given by him to tlie late Lord Holland, as surety for Robert Paris Taylor, under which bonds judgments liad been recovered, it was declared by the order of i7yi, that what should be so placed to the account of Robert Paris Taylor was to be considered as a security to answer the debt due to Lord Holland from the estate of Peter Taylor. That debt was ascertained by the master's re- port at l6,(ji'2/. 19s- od. The master's report, dated the 1st of April, l7Ji-, stated, that he had taxed the costs of all the parties, including those of Robert Paris Taylor. He died in 179'^. By anollur order, dated the 19th of July, 1799, it was ordered, that the sum of 14,990/. 4s. 4d. bank 3 per cent, annuities, being the amount of the appropriations directed by the former order to the account of liohert Varis Taylor, should be placed to the account of the real estate of Peter Taylor; and that the value iheieof should be taken in part satisfaction of the debt due to the estate of l^ord I J oi land. In July, 1601, the far- 103 APPENDIX. ther sum of 243/. 12s. Qd. which had been since got in, was paid into the bank to the account of Robert Paris Taylor, and laid out in S85/. Qs. 3d. 3 per cent, annuities. The prayer of the petition was, that the sum of 385/. 6s. 3d. bank annuities may be sold ; and that the proceeds, together with the sum of 34/. 13s. 6d. cash, in the same account, may be paid to the petitioners, in part satisfaction of the sum of 331/. 9s. 4d. the amount of their costs, as taxed under the order of 1791; and that the residue of their costs may be raised and paid out of the 3 per cent. annuities, standing to the account of the real estate of Peter Taylor, or any other fund. Mr. Perceval and Mr. Hart, in support of the petition, contended for the solicitor's lien for the costs ; insisting, that, except in the instance of a creditor of the solicitor, there is no case in which taxed costs are not directed to be paid to the soli- citor. Mr. Richards, for the executors of Peter Tay- lor, resisted the petition ; insisting, that under the circum- stances the whole fund, recovered by ihe estate of Robert Paris Taylor against the assets of his father, should go to reimburse those assets on account of Lord Holland^ de- mand, without any deduction for the costs. The Lord Chancellor. The subject of this petition is of great and general importance. The lien of an attorney for his costs, as between him and his client, cannot be disputed, li an attorney, employed to sue, recovers 500/. and is entitled to tax the costs, and the client, being a debtor to the defen- dant in that action to a greater amount than the sum reco- vered, did not plead a set off, but afterwards brings an ac- tion, and recovers a greater sum, that would not deprive the defendant in that action of his right to costs in the other. The attorney undertakes the suit upon the personal credit of the client ; which has a good effect in preventing vexatious suits ; as the attorney, unless he sees a probabi- lity of success, will not encourage the client. But the re- APPENDIX. 109 suit being, that the client is entitled to costs, it is aduiitled, they are the costs not of the client, but of the altoi ney ; the effect of his lien ; of which he is not to be deprived, unless satisfied by other means. The answer to that is, that it is true, if Robert Paris Taylor was entitled to the costs, the attorney had a lien : but they were not the pro- perty of Robert Paris Taylor; as, thongli lie had reco- vered a demand from the executors of his father, yet by the claim of Lord Hol/and's estate before the master against the assets of the father, as having been surety for the son, the balance as between them was turned the other way ; the plaintiff in the action, in which these petitioners were the attorneys, being suddenly converted into a debtor. If such a rule is adopted in equity, it will be attended w ilh extreme hazard to attorneys. My opinion is, that in this case the attorney is entitled to his costs ; and the orders that have been made will bear that construction. They are the costs of the plaintiff in the tiist instance. Lord Thurlow and Lord Ross/yn could not know how the ac- count stood with the attorney. The cliejit might have ad- vanced money to him. The lien of the attorney must depend upon the account between them ; which the court had not then investigated. The prayer of this petition must therefore be granted. NoRRis V. Wilkinson, 1806, 12, Vesey, Jun. J 92. — The bill was filed by creditors of James WHkimoii, a bankrupt, and his deceased father Matthew Wilkinson; who had cairicd un business in partnership as dyers; claiming the benelit of a security upon real estates, by a deposit of the title-deeds under these circumstances. James Thompson by his deposition stated, that in ]\fay, 1803, he was employed as an attorney by the plaintiffs, on their own account, and as agents for Mackintosh and Co. in America, to obtain security fiom the Wilkinsons Uit 110 APPENDIX. debts of above 300/. due to Nonis and Co. and above 1000/. due to Mackintosh and Co. for articles supplied to the Wdkinsom in tht-ir trade ; with directions, if neither payment nor the security could be obtained, to send for writs by the post of that day; that he went to Leeds, where the Wilkinsons lived, with a letter, requiring the security for the said debts, then due, and any other debts, which niiglit become due to the plaintiffs, upon their estates at Leeds; proposing, that Mufthew Wilkinson should have power reserved by such security to raise l.oOO/., to be preferred to the plaintiff's security. Jtmies Wi kinson, coming to the deponent at the inn, represented, that his father wa'* much indisposed, and could not be seen, and took the letter away to consult his father: the deponent observing, that, if his father was inclined to give the secu- rity required, the dep nent would want the title-deeds of the estate. James Wilkinson soon returned, bringing with him, and delivering to the deponent, the title-deeds and a plan of the estate ; at the same time saying, that, as the balances due to the plaintiff' Norris, as agent for the one house, and as partner in the other, were so very consi- derable, it was only right he should be made easy ; and that Matlhezv Wilkinson desired the ileponent to prepare such security as Norris had required ; and added, that it would have been more convenient for his father to have raised 1500/. upon a mortgage of the premises previous to giving Norris the security : but, if he could not wait, a power must be reserved for that purpose, to have priority of the security to the plaintiffs. The deeds and plan were left in the custody of the deponent by James Wilkinson, for tiie express purpose of enabling the deponent to pre- pare the security ; and he told Wilkinson, that, w hen se- curities of that nature were given, it was usual that the title-deeds should be left with the person to whom the se- curity w as given ; and therefore he should give them into APPENDIX. Ill ihe hands of Norr/s, to be kept with the intended mort- gage; to which James IVilkiusou made no oljtclion ; and the deponent accordingly toi)k them away. The dt- ponent does not recollect James IVilkinson saying in ternjs, ihut he or his father did agree to the deposit of the deeds as a security : but it was perfectly understood between the de- ponent and James U ilkinsju, previous to the latter going to consult his father, that, in case he agreed to give the security required, Norris would expect to have the posses- sion of the original title-deeds, as well as the proposed se- curity ; and the deponent understood, James fVilkitison brought them for that purpose, and as instructions to pre- pare the deeds as a security from. The deponent farther stated, that in July, l.S0;3, and about a week before the death of Matthew Wilkinso7i, the deponent offered to James U ilkimon, to be executed by him and his father, a conveyance, to secure the several debts then dne, and which might become due from the WUk'uisons to the re- spective firms of the plaintiff^s, in respect of articles to be sold in the way of tlieir trade. James Wilkinson having expressed liis approbation uf the deed, and appointed two o'clock for the execution, took it away for the purpose of having it looked over by his attorney ; and returned at the time appoMited lor the execution without it ; saying, his father was so extremely and alarmingly ill, that he could not trouble him on the subject of the security at that time; but requesting the deponent to inform Norris he might make himself |)ei feclly easy ; for, if his father recovered, he (James Wilkinson) was 6ure his father would execute the same deeds ot security ; and he (James ft ilkinson) wonUI bring ihcnj over to Nonis hiniself, willioul loss of time; and in case of his father's death, he (James) would immediately give Nori is the security required, in order to make him easy. The death of Matt/iezo Wilkinson following immediately, the deed was ni;t executed. 112, APPENDIX. The deftndant, James Wilkimnii, by his answer and depo- sitions, represented the plan, proposed upon 'Sorriss ap- plication fur payment, thus ; that Matthew Wilkmson should raise 1300/. by way of mortgage; Norm under- taking to assist in procuring that sum : but, that failing, tsorris proposed, that, if that sum could not be procured elsewhere, a mortgage security should be prepared to him or his principals for that sum ; and that the money, actu* ally due to the plaintiffs according to the usual course of the trade, should be deducted ; with a proviso, to enable Wilkinson to raise 1500/. elsewhere. Matthew Wilkinson agreed to that proposal, if he could not procure the money elsewhere. The letter delivered by Thompson in May from Norris, stated, that he had not procured the loan ; and sent Thompson to receive instructions for the proposed mortgage, according to the answer : the deposition stating only, that the latter required payment of the sums then due. Only part of the debts claimed were then due, the goods having been supplied upon a twelvemonth's credit. Thompson said, it would be necessary for him to see the title-deeds, to know whether the tiile «as good; and to extract some particulars to enable him to prepare the secmity. Matthew Wilkinson, being informed of this by the defendant, strongly objected to parting with the deeds out of his own hands : but at length the defendant prevailed upon him to consent to Thompson's seeing them ; and he delivered them to the defendant, with a strict charge to bring them back to him after Thompson had extracted the particulars he wanted. After Thompson had looked at the deeds, he for the first time said, he must take them with him; to which Wilkinson ohjeclmg, and mentioning the charge he received frOtn his father, Thompson appeared much offended ; declaring, that Norris and he were inca- pable of taking any advantage ; and the defendant, from his conduct, aud under the idea that he wanted the deeds APPENDIX. lis merely as instructions, as he had intimated, and upon his representation, that the person lending the money would want to see tlie deeds, was prevailed on to perniit him to take them with him ; on wiiich account his father was very mucii displeased with him. The defendant objected to the deed prepared by Thompson, as var)ing from the propositi ; and it was disapproved by his attorney, as going to secure all future debt. He denied, that he informed Thompson that his father had consented to give the secu- rity required ; or had desired liim to deliver the deeds to Thumpson, in order to prepare a sufficient security for the payment of ihe debts, and of any other debts which might become due ; or, that the defendant did deliver the deeds with such directions ; and said, he would procure his father to execute them, &c. (according to Thompsons evidence) ; insisting, that Thompson did not require the deeds to be given up to him as a security for the said debts, &c. ; or, that the plaintiffs might have a lien thereon ; that the only purpose for which the defendant delivered them, and the inducement held out to hiin, was merely to furnish instruc- tions for the mortgage security for the said loan, which Thompson assured him there was great probability of ob- taining; and, if that should fail, then as instructions for preparing the conditional security before mentioned ; and not to give a security for the said debts in the first instance. The defendants submitted, whether the plaintiffs have any lien upon the title-deeds and estates otiierwise than as creditors, under a devise of Matthew Wilkinson for the payment of his debts. The Master of the Rolls. 1 own that the cases which have held the deposit of deeds to con- stitute a mortgage, have always appeared to me to rest on very unsatisfactory grounds. If any act appeared, so un- erringly speaking its purpose, that a court could infer, and execute such purpose, without the aid of any extrinsic tes- timony, a written declaration of the purpose might appear I 114 * JtPPENDlX. to be altogether superfluous. But the mere fact, that the title-deeds of one man's estate are found in the possession of another, is not of this description. It is a fact, that may exist without any contract whatever : or it may result from a contract, of which it does not in any degree dis- cover the particulars and details. If for these we are to resort to parol testimony, the effect to be given to the pos- session depends not on any inference, which it of itself affords ; but on the evidence, by w hich the nature and the object of such possession shall have been ascertained ; and how can that evidence be let in consistently with the statute of frauds ? In the case of Russel v. Russel, an issue was directed to try, with what intention the lease was delivered. The fact of delivery was to have no operation, till the purpose of the delivery should be ascertained. So that, whether an interest in land did, or did not pass, was to depend on the testimony of witnesses, and not on any written contract between the parties. I do not see, why there should be such a disposition to relieve parties from the necessity of attending to the requisitions of the statute. There is no case where a man is willing to part with his title-deeds, in which he would not also be ready to sign a memorandum of two lines; specifying the purpose for which he had parted with them. By dispensing with any written evidence of the contract, an opening is left for all the fraud and perjury, which the statute was calculated to exclude. However, notwithstanding my doubts concern- ing the principle of the cases, to which I have been al- luding, I may think myself bound to follow them, as far as they have gone : but I feel no disposition to go beyond them. Where the deposit is made at the same time that money is advanced, there is little to be supplied with refe- rence to the nature of the agreement. It is obvious that the purpose of the deposit must be to secure the repay- ment of the money. The connection is not so direct APPENDIX. * 115 between a debt antecedently due and a subsequent deposit: nor is the inference so plain. But, what is ihe kind of case now before the court ? Here are persons in trade, dealing with each other on credit. Some debts are due; some contracted ; but the term of payment not yet arrived. New dealiugs may every day give rise to new debts. Un- der these circumstances what is to be gathered from the mere fact of a deposit of deeds, supposing the transaction to be of that nature? Is die deposit to be a security only for the debt due, or also for the debt contracted ? The plaintitls say, they were to have a security for every thing due, or to grow due. The defendants contend, that it never was in contemplation to give a security fur more than the sum, of which the term of payment had previously elapsed. As I am of opinion, that this is not a case of a deposit of deeds, I am relieved from the necessity of con- sidering how far 1 should have been bound by former de- cisions to proceed upon parol testimony in a case circum- stanced as this is. It is clear that these deeds, if volun- tarily delivered at all, were not delivered by way of deposit in the sense in which that word has been used in the cases: ». e. as a present and immediate security ; but were deli- vered only for the purpose of enabling the attorney to draw the mortgage, which, it is alleged, JJ'i//c.'/ison the father had agreed to give. Passing by all the objections made to Thompson's testimony, and all couiideration of the par- ticulars, in which it is contradicted by the deposition of Wilkinsony and taking it exactly as it stands, it does iti every part of it prove w hat J have staled with respect to the purpose, for which the deeds were put into his hands. Now in all the cases, that have been referred to, the deeds were delivered by way of deposit. Such deposit was in- deed held to imply an obligation to execute a legal con- v.eyance, whenever it should be required. But the primary intention was to execute an immediate pledge; with an J 2 •116 * Appendix. implied engagement to do all that might be necessary to render the ple 128 APPENDIX. much reason that the lien should not accompany the secu- rity through that period, as in the instance of a trade ; and the conclusion is equally difficult, that the papers, if the client has occasion for them, could be withheld. I am not at present satistied that this lien exists. The practice with regard to the lien of an attorney upon papers is not very ancient. Lord Mansfield states that exprtssly ; and that he had argued the question in tlie Court of Chancery; and Sir Jamei Burrozc mentioned the lirst decisii)n, which established it in a court of law by analogy to other cases of lien. Looking through the general doctrine of lien, as applicable to all cases, except the purchase of an estate, with reference to which it has in a scries of decision been extended, it may be described as prima facie a i ight ac- companying the implied contract. In the case of a factor, who has a lien both for his expenditure upon the goods in his possession and his general balance upon former irans- actions, entering into a special contract for a particular mode of payment he loses the lien. In various trades the demand being for work and labour, apj)lied in some in- stances upon the particular goods, in others upon other goods also, though the possession had been given up, it is universally laid dovin, that if that takes place under a spe- cial agreement, there is no such lien; and if it comn)enced under an implied contract, and afterwards a special con- tract is made for payment, in the nature of the thing the one contract destroys the other. The exigencies of man- kind requiring the goods to be delivered for consumption, the implication from an engagement for security of an en- gagement to deliver the goods without payment is neces- sary : otherwise from a promissory note, payable in three years, a contract nuist be implied, that the goods are to be retained during that period ; destroying the other special contract. So, in this instance, if the solicitor says, he will not proceed in the business, and will not deliver up the APPENDIX. 129 papers, ihe consequence is, that he destroys the express contract to postpone payment for tliree years. Therefore, unless from the fact, that he has taken this security, you can imply, that he is to keep the papers three years, though the vital interests of the owner may depend on the posses- sion of them, the implication is necessary, that he is to deliver them up, and rely on the other contract. I do not enter into the question, whether he was obliged to go on, farther than to observe, that a client at law cannot change his attorney without leave of the court; and there is no mutuality, if the attorney has au absolute discretion to re- linquish the cause. Suppose a sun> of money declared to be due by decree or judgment: it is clear, according to the established rule of lien, and the practice, that the attorney mav give notice to the defendant not to pay the n>oney, until his costs are satisfied. How can that lien he consis- tent with a special agreement to give credit for three years, receiving interest? He must either abandon that contract, or claim under it and his lien also; insisting, that notwith- standing that contract he will not permit the client to re- ceive the money for three years. The proposition, that the lien can exist after such a special contract, necessarily involves a contradiction to that contract. My opinion, therefore, is, that w here these special agreements are taken, the lien does not remain ; and whether the securities are due or not makes no difference. The case at the Rolls has no application. Business had been done by the attor- ney during a course of years. At a particular period secu- rity was given ; and afierw ards the residue of the money was paid, A second settlement took place; and the ba- lance was secured by bond, payable in 1801. Tiure was no demand bi)ond that bond, exce|)t 1 l/. The bond be- came due; and under those circumstances a petition was presented, not disclosing those facts, praying a general K 130 APPENDIX. taxation of the bills ; which could not possibly be due. To make that case similar to this, the application should have been previous to the time, when the bond was due ; submitting, whether, as a bond had been given, though it was not due, the lien could remain. The order was made accordingly, that on payment of 82/. Os. Qd. the so- licitors should deliver up the papers belonging to the de- fendant either in his own right, or as executor. Snook v. Davidson, 1809, 2. Campbell, 218. — Trover for a policy of insurance. — The question was, whe- ther the defendants had a lien upon this policy for the general balance due to them from one John Carter? In December, 1808, and January, 1809, the plaintiffs gave in- structions to Carter, an insurance broker, to effect several policies for them. Carter, instead of doing so himself, without their consent or knowledge, employed the defen- dants, who are likewise insurance brokers, to effect the po- licies. He told the defendants, they were for a correspon- dent in the country ; and it appeared from the policies themselves, which he delivered to them, that they were for the plaintiffs, as they were all filled up in their names. The defendants got the policies underwritten, and advanced the premiums ; no part of which has yet been repaid to them. All the policies were delivered to Carter, except that on which the action was brought. In January, 1809, Carter was declared a bankrupt. The plaintiffs were then in- debted to him in a larger sum than the balance due from him to the defendants. Before the commencement of the action, the plaintiffs tendered the defendants 17/. 6s. 6d. the amount of premiums and commission on the policy in question; but the defendants refused to deliver it up, un- less the balance due to them from Carter were completely satisfied. Lord Ellenboroiigh. There is no privity be- APPENDIX. 131 tween you and this party. A sub-agent employed as the defendants were, cannot acquire the broker's general lien. Verdict for the plaintiffs. Lanyon v. Blanchard, 1811, 2 Campbell, 597. — This was an action to recover the amount of a loss re- ceived by the defendant, upon a policy of insurance which he had effected as a broker.- The plaintiff being at Monte Video, wrote to one Crozvgy at Falmouth, in- closing an unindorsed bill of lading, of certain tallow, de- liverable to the shipper's order, and directing him to effect an insurance on the tallow, and to employ a good house at Liverpool to sell it, for the plaintiff's benefit. Crozegy came to London, employed the defendant to effect the insurance, represented that he had authority to indorse the bill of lading, and actually did indorse it accordingly, to a person at Liverpool named by the defendant. The defen- dant effected the policy. The ship was lost, and he re- ceived the sum insured from the underwriters. This he claimed to retain, to satisfy a balance due to him from Crowgy. Lord FJlenborough was of opinion, that in transactions of this sort, if an agent represents himself to have a power which is not intrusted to him, his principal is not bound by his acts ; that the person who gives faith to the representations of the agent must run the risk of their being true or false ; and that as Crowgy had no authority to indorse the bill of lading, or to act as proprietor of the tallow, the defendant was only a sub agent, and could not retain the sum he had received upon the policy from the person, for whose ultimate benefit it was effected. Ver- dict for the amount of the loss, subject to a deduction for the premiums and other charges due on this particular po- licy. Wolf v. SuMMiiRs, 1811, 2. Campbell, 031. — K 2 130. APPENDIX. Trover for a trunk filled with wearing apparel, and a wri- ting desk. The plaintiff had returned to England from the Brazils in a ship, of which the defendant was master. The plaintiff himself came ashore at the first port the ship made in the channel, and travelled to London by land. The articles in question, which were part of his luggage, he left behind him to come round with the ship. When she arrived in the river, he sent to demand them ; but the defendant refused to deliver them up till he should be paid 15/. — saving, that the plaintiff was to pay 30/. for his pas- sage, and had then paid only one half of that sum. Laz&rence, J. The master of a ship has certainly no lien on the passenger himself, or the clothes which he is actu- ally wearing w hen he is about to leave the vessel ; but I think the lien does extend to any other property he may have on board. A certain sum is agreed to be given for carrying the man and the luggage. 1 think the captain has a lien for this upon the luggage. In detaining that, there is nu greater inconvenience than in the common case of goods and merchandize carried on freight; and there is no reason why there should not be the same lien for the reco- very' of passage money as for the recovery of freight. I conceive the defendant had a right to say to the plaintiff, " You shall not have your things till you pay me what is due for bringing them and you from Brazil " and that in refusing to deliver them up, he was not guilty of any tor- tious conversion. Evidence was given that 30/. was a rea- sonable sum for the plaintiff's passage in the steerage of the ship, and the defendant had a verdict. Phillips v. Rodie, 1812, 15. East, 547.— In trover for 1 79 bales of cotton, which was tried at Lancas- ter, before Wood, B., a verdict was found for the plaintiffs for 1,955/. I8i-. 9.d., subject to the opinion of the court on the following case. On the I5ih of October, 1810, White APPENDIX. 133 the bankrupt, entered into a charter-party with the defen- dants for the hire of the ship Flora, of which the defen- dants are owners, on a voyage from Liverpool to Surinam, and back again. By the charter-party the \essel was to carry such lawful goods as White or his agents chose to put on board, without any specification as to the sort of goods. And after providing for the delivery of the out- ward cargo at Surinam^ and loading the homeward cargo there for Liverpool, the defendants agreed that the master should proceed, wind and weather permitting, with the vessel and cargo to Liverpool, and on her arrival there should deliver the same to White or assigns, in the same state and condition as when put on board ; the dangers of the seas and other inevitable accidents excepted ; and to end the said intended voyage. White agreed that he would, within 21 running days, to be computed as after- mentioned, cause a cargo of lawful goods to be loaded on board the vessel at Liverpool, and in 40 running days would cause the same to be discharged, and the vessel loaded again with a full and complete return-cargo of lawful goods at Surinam, and to be discharged in Liver- pool. White also agreed to pay to the defendants for the freight of the vessel from Liverpool to Surinam, for all goods put on board, and in lieu of custom-house duties, &c. 105/., by an approved bill on London, not exceeding three months date; and for the freight from Surinam to Liverpool, for all goods put on board her at Surinam, at the following rates, viz. lis. for every cwt. of sugar, 12s. Qd. per cwt. in every bag of coffee, 13s. 6d. per cwt. in every cask of coffee, 2jC?. for every pound of cotton in square bags, and 3d. for every pound of cotton in round bags. Out if the vessel should not be fully laden with the return-cargo, then White should not only pay for the goods zchich should be on board, but also for so much in addition as the vessel would have carried. 134 APPENDIX. White should not within the time aforesaid put any law- ful goods on hoard the vessel, then that he should, on the arrival of the vessel at Liverpool, pay full freight for the •vessel to the defendants, as if she had been fully laden with goods of the description before-meutioned: with 5/. per cent, primage in lieu of all pilotage, port, and other charges : such freight and primage to be paid in the fol- lowing manner, viz. so much money as might be necessary for the ship's disbursements at Surinam, to be paid there free of conunission and interest, and the remainder to be paid on the delivery of the cargo at Liverpool, in an ap- proved bill on London, not exceeding three months' date. And in case White should not cause the cargo to be put on board the vessel at Liverpool within 21 running days, to be computed from the time of her being ready to re- ceive the cargo, and notice thereof given to White, &c. then White should pay to the defendants \ol. \5s. for de- murrage for each day, &c. over and above the said 21 days for loading the vessel at Liverpool. And in case White i\io\i\A not cause the vessel to be discharged at Su- rinam, and there loaded with her homeward cargo, within 40 running days, to be computed from her arrival at a proper place of discharge, and being reported and ready to unload and load the return-cargo, and notice thereof to White, &c., then ihat he should pay to the defendants the further sum of 15/. 15s. for demurrage for each day not exceeding 20 days, over and above the said 40 days, &c. for discharging and loading the vessel at Surinam; but White should not on any account detain the vessel beyond the said 20 days after the expiration of the said 40 days, but should prior to that period load the vessel with a full and complete cargo of lawful goods as before mentioned. The case then stated that the ship sailed from Liverpool within the time limited by the charter-party, and arrived at Surinam, and there delivered her outward cargo to White's APPENDIX. 135 agent. That White paid the defendants for the freight of the ship from Liverpool to Surinam, pursuant to the terms of the charter-party. That the ship was detained by White at Surinam 18 days beyond the time limited in the charter-party for that purpose, and thereby 2S3/. 1{)5. accrued for demurrage of the vessel for such time as she was so detained ; and a bill was drawn by White's ao-ent in favour of the defendants at 60 days sight, upon White for that sum ; but before the bill arrived, White having become bankrupt, it was refused acceptance before the demand of the goods, as after-mentioned, and still remains unpaid to the defendants, who are now the holders thereof. That the ship sailed from Surina)n on the 3d of Febru- ary, and arrived at Liverpool on the 22d of March, 1 8 1 J ; which was after White's bankruptcy; having 179 bales of cotton on board, containing 51,10.5 pounds, which were the property of and consigned to White ; and three several bills of lading were given to the agent of White, by the captain of the Flora, one of which is dated Surinam, 24th of January, 1811, for 121 bales; another dated 2d of February, 1811, for 19 bales; and the 3d dated 2d of February, 1811, for 39 bales. The form of one of the bills of lading was set forth in the case, of which this is the substance — " Shipped, by the grace of God, &c. in the good ship Flora, &c. now riding in the river Surinam, bound for Liverpool, to say, 121 bales cotton, being marked, &c., and are to be delivered in like good order, &c. at Liverpool; (the act of God, &c. excepted,) unto T. White, or his assigns, he or they paying freight for the said goods, and three stivers per pound, with primage, and 10/. per cent, average accustomed. In witness, 8cc." Whitens agents also loaded on board the ship at Suri?iam about 60 bales of other cotton or freight, which freight has been received by the defendants. The 179 bales of cotton belonging to White were put on board the Flora, 136 APPENDIX. before, or on the respective dates of the said bills of lading. The ship was not loaded at Surinam with a full and com- plete return-cargo of lawful goods by White, according to the tenor of his covenant, but there was sufficient room in the vessel to stow 299 bales of cotton over and above the quantity on board, and independent of one-eighth of the whole space of the hold, which was occupied by bal- last, which would have been unnecessary if the ship had been fully laden with a complete cargo of goods ; and the deficiency in the freight, on account of the vessel not being laden with a full and complete cargo of cotton, would amount to 1254/. lo5. Gd. ; but if loaded with sugar or coffee, the amount would be to be ascertained by a diffe- rent calculation. The plaintiffs, as assignees of White, on the loth of April last demanded from the defendants the delivery to them (the plaintiffs) of the said 179 bales of cotton, and tendered to the defendants a sufficient sum for freight, primage, duties, and other landing expenses on the said 179 bales. But the defendants refused to deliver the said 179 bales to the plaintiffs, or to accept the money tendered ; alleging they had a right to retain the same, and had a lien thereon for the freight on the deficiency in the vessel's cargo, which is usually called dead freight, ac- cording to the terms specified in the charter-party and the covenant of White ; and also of the demurrage due on ac- count of the vessel's being detained at Surinam as afore- said ; but which demands for demurrage or dead freight the plaintiffs refused to pay. The value of the 179 bales of cotton, after deducting freight upon them at 3d. per pound, and primage thereon, duties, broker's charges, and all other expenses, are agreed to amount to 19551. 18s. 2d. for which the verdict was taken. If the plaintiffs were entitled to recover, the verdict was to stand : otherwise, a nonsuit was to be entered. Lord Elktihorough, Ch. J. It is impossible in this case, without the intervention of a APPENDIX, 137 jury or an arbitrator, to settle what is the sum to be ten- dered : it would be taking a leap in the dark. Where there is no custom to regulate the proportions and the amount, the case must necessarily rest in damages. What is a lien for freight but a right to detain the goods on board until the freight, which has been actually earned upon them, which is always capable of being calculated and ascertained, has been paid, and where the owner of the goods knows what he is to tender? But here the claim to retain is for the amount of damages unascer- tained, which the parties are entitled to recover for the non-completion of the cargo, commonly called dead freight ; but it is that term, freight, which has misled the defendants ; for it is not freight, but an unliquidated com- pensation for the loss of freight, recoverable in the absence and place of freight. The covenant is in effect to load the vessel fully, or if not, so indemnify the ship-owner by paying so much in addition as the vessel would have car- ried : the covenant, in the event of no loading, is to pay full freight for the vessel, (not for goods not loaded,) as if she had been loaded with goods of the description before mentioned : that must depend on the tonnage of the vessel. In order to found the argument, the covenant should have been to pay full freight as if the goods had been actually loaded on board, and that the master should have the same lien upon the goods actually on board as if the ship had been fully laden with all the goods covenanted to be loaded. But if we were to put this construction upon the contract as it now stands, it would be making a new contract for the parties. There is no pretence or colour for the lien now claimed ; it is a lien to attach upon a non-entity : the plaintiff's action of trover, therefore, is not met by any defence. Grose, J. A lien must attach upon some certain thing ; and here there is nothing for it to attach 138 APPENDIX. upon.— — Le Blanc and Bayley, Justices, assented. Postea to the plaintiffs. Bishop v. Wake, 1813, 3. Camp. 360. — This was an action on the case for not delivering goods according to a bill of lading, — with a count in trover. The plaintiffs shipped at Hull, on board a vessel belonging to the de- fendant, a package of files, to be carried to London. The bill of lading was in the usual form, stating that the goods were to be delivered on payment of freight. When the vessel had arrived and was moored off Custom-house Quay, the plaintiffs sent a barge for their goods, which they re- quired to be put over the ship's side into the barge, at the same time tendering the freight. The captain insisted upon his right to wharfage as well as freight, and refused to deliver up the goods till the wharfage was paid. It was now proved, by way of defence to the action, that when goods are put over the ship's side after she is moored at the wharf, half wharfage is usually paid by the consig- nee, — which was contended to be a reasonable demand, as the goods derive a benefit from the ship being moored at the wharf, although they are not actually landed there. Sir Jajnes Mansfield. If the goods are not landed, a compensation must be made for the benefit derived from the wharf, by the owner of the ship. The goods cannot be subjected to this charge, more than to many others which are incurred by the ship in the course of the voyage. According to the bill of lading, the goods in question were to be delivered on payment of freight. The defendant, therefore, could have no right to detain them for wharfage. The plaintiffs had a verdict. . Haleett, Ex parte, 1814, 3. Ves. & Beames, 135. — The petition staled, that in 181 1, the Canton East APPBNDIX. 139 India ship being at Canton, it became necessary for the use of the ship to borrow upon her credit 6000 dollars ; which sum was advanced by the petitioners, upon an agree- ment with liie captain to advance it on the security of the ship ; as is usual in such cases ; and to receive bills upon the owners at six and three months sight. The peti- tion averred, that it is usual in such cases, and was express- ly understood and agreed that the said sum was advanced by the petitioners upon the credit of the ship, as well as of the said bills of exchange ; and that the ship, her captain and owners, were to be jointly and severally liable. The bills were accepted by the managing owner ; who, before they were due, became a bankrupt : and the assignees took possession of the ship upon her arrival j and sold her. The prayer of the petition was, that the assignees under the commission may be ordered to pay the bills, with interest, out of the produce of the sale. The Lord Chancellor. That case has the specialty, that the advance was made the captain himself; raising this distinction, that the master must have the lien without an instrument ; as he cannot execute an instrument to himself: but that does not determine, that a third person has the lien. Direct an in- quiry as to the nature of this advance. The allegation is too loose. The distinction is very material, whether it was for repairs, or for other purposes, for instance, victuals for the seamen. In the case of repairs the authorities seem to establish the lien. Hooper v. Ramsbottom, 1814, 4. Campbell, 121. — Trover for deeds. By indenture, bearing date 24th December, 1811, John Jones demised certain premises in Gracechurch-street to Jo/m Storm for the term of 21 years. By mesne assignment this lease became vested in John Whittle Harvey, a partner in the firm of Harvey and Son, bankers in Essex. In August, 1813, he agreed 140 APPENDIX. to sell it to IVells, the bankrupt, for 030/.; that 130/. of this sum should be paid in cash ; that for the residue J. W. Harvey should draw five bills of exchange on Wells at 2, 6, 12, 18, and 24 mouths, and that the assignment of the lease from J. W. Harvej/ to Wells, together with the original lease, and the mesne assignments, should remain in the hands of Daniel Whittle Harvey, an attorney, as a collateral security for the payment of the bills. The bills were drawn, and the deeds lodged with D. W. Harvey accordingly. Two of the bills were paid, — when Wells became bankrupt. J. W. Harvey being then very much pressed for money, went to D. W. Harvey, and obtained from him the original lease and mesne assignments. These he pledged with the defendants, his town bankers, with other securities, and the defendants bond jide advanced a considerable sum of money upon them. He likewise gave them the three bills accepted by Wells which remained unpaid. The plaintiffs before the commencement of this action tendered payment of these bills to the defendants, and to the assignees of J. TV. Harvey. Gibbs, Ch. J. I am opinion that the plaintiffs are entitled to recover. Had the deeds been left in the hands of the assignor, this would have been like the case which has been put of the second mortgage. But they were deposited with D. W. Harvey, to be given to Wells when the instalments were paid. A wrong was committed when he parted with them to another person, and the defendants cannot at any rate acquire a greater lien on the deeds than existed when the original deposit took place. The money due upon the bills with interest has been tendered. Therefore the plaintiffs would have been entitled to recover the deeds from D. W. Harvey, and have the same right as against the defendants. Verdict accordingly, which was afterwards approved of by the court, on an application for a new trial. APPENDIX. HI Raitt t. Mitchell, 1815, 4. Campbell, 146. — Case. The declaration contained • several special counts for wrongfully detaining the plaintiff's ship, which had been delivered to the defendant to be repaired, — with a count in trover. The defendants are shipwrights, and have a dock in the river Thames. In October last, the plaintiff having purchased an East Indiaman, called the Ocean, delivered her to the defendants to be repaired, and she was placed in their dock for that purpose. Nothing whatever passed between the parties with respect to the time or manner in which the repairs were to be paid for, until the end of December, when they were completed. The plaintiff having then required that the ship should be delivered back that she might proceed on her voyage to the Hast Indies, the defendants said she should not leave their dock till security was given for the repairs, which amounted to above 3000/., and considerably exceeded what they supposed w'ould have been necessary. The plaintiff, protesting against the defendants' right to detain the ship, — from his anxiety to get possession of her, was willing to give them security for the fair amount of their bill ; and to ascertain this, several meetings took place between the parties, and arbitrators were appointed. However, they could arrive at no conclusion upon the subject, and the defendants peremptorily refused to allow the ship to be undocked till the whole of their demand was paid, or se- curity given for it. On the part of the plaintiff, it was now proved, that by the usage of trade in the river Thames, where there is no express agreement as to the time of payment, the shipwright invariably gives credit for repairs to the owner of the ship repaired. The credit varies in different trades. It is generally fifteen months ; with re- spect to East India ships, it is eighteen months ; but without a previous stipulation for that purpose, neither a ready money payment, nor security is ever required. 142 APPENDIX. Lord Ellenborough. 1 am of opinion that in this case the defendants had no right to detain the plaintiff's ship. It is distinctly proved that where tiiere is no express stipu- lation for a ready-money payment, credit is invariably given by shipwrights in the river Thames. The period of credit varies in the different trades in which ships are employed ; but in each trade it appears to be uniform, and for the re- pairs of Indiamen we are told it is 18 months : — at the expiration of which time it is expected they shall have re- turned from their voyages, tnid put funds into tlie hands of their owners by the freight they have earned. This being the invariable usage, I must cons^ider it as the Ijasis of the contract between these parties; and their respective rights and liabilities are precisely the same as if, without any usage, they had entered into a special agreement to the like effect. In that case it seems to be admitted that no lien could be claimed. To be sure, a lien is wholly in- consistent with a dealing on credit, and can only subsist where payment is to be made in ready money, or there is a bargain that security shall be given the moment the work is completed. I do not say that a shipwright has not a lien on a ship in his dock, where he is to be paid in ready money as soon as the repairs are finislied. On the con- trary, I am incHned to think that he has a lien like other artificers. But there can be no lien without an imme- diate right of action for the debt, and that does not accrue till the period of credit has expired. Verdict for the plaintiff. Heywood ■«. Waring, 1815, 4. Campbell, 291. — This was an issue directed by the Lord Chancellor, to try " whether Humble and Holland had any lien, and to what amount, at the lime of their bankruptcy, on the pro- ceeds of the cargo of a ship called the Elegante, then in the hands of certain persons using the firm of James APPENDIX. 143 Waring and Co." The two bankrupts carried on busi- ness in partnership together at Liverpool, under the firm of Humble and Holland. Holland was at the same time in partnership with Frederick Holmes at Messina, under the firm of Holland, Holmes, and Co. There was like- wise a firm at Malta of Holland and Co., consisting of Holland and four other persons. In the year 1810, Hol- land, Holmes, and Co. shipped a cargo on board the Elegante at Messina, consigned to James Waring and Co., of London, and on the 15th of July wrote to them as fol- lows : — " This vessel and cargo we have disposed of to Messrs. Holland and Co. of Malta, and we have given them a letter to you to that effect. A copy of it we in- close, and we fully confirm the contents, requesting you to account to them alone for the balance." In the letter given to Holland and Co., addressed to James Waring and Co., Holland and Holmes say, " in consequence of an arrangement with Messrs. Holland and Co. of Malta, we hereby request you will account to them for the net proceeds of the cargo consigned to you by us, per our polacca ship Elegante." On the 23d August, 1810, Holland, Holmes, and Co., Holland being then at Mes- sina, wrote to James Waring and Co. saying, " Messrs. Holland and Co. of Malta, having failed in performing part of the agreement, in faith of which we had directed you in our respects through them of the 5th ultimo, to pay to their order the balance that may be accruing to us from net proceeds of Elegante's cargo as therein detailed, we are under the necessity of revoking those orders, and we do hereby revoke and rescind our said letter of the 15th July in their favour; and request you to place the net proceeds of her cargo, or of both cargo and ship, (in case of loss or capture of her,) to the credit of our account current, and not to pay any part thereof to Messrs, Hol- land and Co. or their order, notwithstanding any thing 144 APPENDIX. they may write to the contrary, or that may be stated to you by Mr. Szdnton Coaltliurst Holland, who is at pre- sent (as we are given to understand) established in business in your city. On account of the net proceeds of cargo by that vessel, or on our general account, as you may deem right to place the amount, we have taken the liberty to value on you on the 20th instant at 30 days, for 400/. sterling, order of Camming, Pater, and Co. ; and for 100/. order John St. Legei- Hansard, which we request that you will in any case honour and place to our debit in account. We have stated the amount on the drafts to be an account of shipments per Elegante, being nearly cer- tain that this will reach you before you can have executed the disposition made in ours of the 15th ult., and will of course prevent your doing so ; and under this idea, we fur- ther request that you account to Messrs. Humble and Holland of Liverpool for 3000/. sterling, say allow them to draw on you at three months' date for that sum on our account, to be paid out of the net proceeds of that vessel's cargo." At the date of this letter, Holland, Holmes^ and Co. were indebted to Humble and Holland in a sum of money, about 6000/., which still remains due. Holland^ Holmes, and Co. at the same time wrote to Humble and Holland, and informed them of their having requested Waring and Co. to accept their drafts at three months* date for 3000/. against the proceeds oi the Elegante. These letters to Waring and Co. and Humble and Hol- land, were received on the 9th of October, 1810, and two days after Humble and Holland drew on Waring and Co. six bills of exchange, amounting to SOOO/. which they refused to accept, on the ground that an attachment to the amount of 10,000/. had been laid on the property of Messrs. Holland, Holmes, and Co. in their hands, by Messrs. Holland and Co. of Malta. Waring and Co. sold the cargo of the Elegante, and when the bills wer^e APPENDIX. 14t^ drawn upon them, they had a sufficient sum arising from the proceeds to have paid the bills. This sum continued in their hands till after the respective bankruptcies of Humble and Ho/land. The attachment by Holland and Co. of Malta was abandoned, there being nothing due to them from Holland, Holmes, and Co. On the 25th of October, 1810, Holmes, the partner of Holland in the house of Holland, Holmes, and Co. wrote the following letter, iu the name of tliat firm, to Waring and Co., but without the privity of Holland. " Messina, 25th October, 18iO. " Messrs. James Warins and Co. O " Gentlemen, " The purport of the present is solely to request, that if, as we fully hope, the Elegante and her cargo come into your hands, that you will on no account pay any part of the net proceeds to Messrs. Samuel Holland, Messrs. Humble and Holland, or to Mr. J. C. Holland, but hold the whole to our credit on account, and wait our di- rection as to the disposal of it. " We are truly. Gentlemen, " Your most obedient servants, " Holland, Holmes, and Co.'' A commission of bankrupt issued against Holland in No- vember, 1810, against Holmes in October, 1811, and against Humble in Jpril, 1813. Lord Ellenborough. Humble and Holland may be entitled to the 3000/. in question ; but I do not see how they can have a lien on the proceeds of this cargo to that or any other amount. They never were in possession either of ilie cargo or of the proceeds ; and without possession there can be no lien. A lien is a right to hold ; and how can that be held which was never possessed ? I can only look to see whether Humble and Holla7id could hold the proceeds of this cargo in satisfaction of their own debt ; and they certainly L 14G AfPENDlX. could not, as neither cargo nor proceeds were ever in their possession to be held. Plaintiffs nonsuited. Wilson V. M'Taggart, 1813, 1. Maule & Sel- WYN, 157. — The plaintiffs declared as owners of the ship Harmony t for ihe freight of a certain quantity of sugar and rum fiom St, Croix to London, and stated that the master signed bills of lading for the same deliverable to WiUiams and Wilson ov iheir assigns, he or they paying freight for the said goods; that the ^hip arrived on the 1st of Jm/j/, 1810, of all which the defendants had notice. That the said bills of lading were indorsed by Willimm and Wilson to the defendants, who thereby became the assignees of Williams and Wilson in that behalf, and owners and pro- prietors of the said goods ; and thereupon in consideration of the premises, and that the plaintiffs as such owners of the ship, at the special instance and request of the defen- dants, would deliver the said goods fiom and out of the said ship to the defendants under the said bills of lading, the dtfendants undertook and promised the plaintiffs to pay them freight for the said goods according to the said bills of lading. That the plaintiffs confiding in the said promise and undertaking, did deliver the said goods out of and from the said ship to the defendants under the said bills of lading ; and although the defendants had and re- ceived the said goods out of and from the said ship under and by virtue of the said bills of lading, and the freight ac- cording to the said bills of lading amounted to 3000/., yet the defendants did not, although requested, pay the said freight, &c. There vvere several other counts, and amongst them the fourth count was in the common general form, that the defendants on the same day, &c. were indebted to the plaintiffs in 3000/. for certain freight due and payable from the defendants to the plaintiffs in respect of certain goods before that time carried on board a certain other APPENDIX. 147 ship from St. Croix to London, and delivered at London to the defendants and at their request : and being so in- debted, the defendants in consideration thereof promised to pay it. There were also the common money counts. It appeared in evidence before Lord Ellenborough, Ch. J. at the trial in London, that the ship Harmony was let to freight by the plaintiffs to a house at Liverpool, now under the firm of Williams and Wilson, to whom the goods were consigned, and who received the bills of lading for the same, which were in the usual form, to deliver the goods to Williams and Wilson, or their assigns, he or they paying freight for the same. The defendants were con- siderable brokers in London, and being very largely in ad- vance to Williams and Wilson, by whom they were em- ployed as brokers, took from them by way of security the bills of lading, and afterwards made further advances upon them, which bills of lading Williams and Wilson indorsed to them before the arrival of the Harmony, which was re- ported at the custom-house in London on the 19th of June, 1810, after her entrance into the West India docks. The entry was made at the custom-house by the defen- dants in their names, and they paid the duties ; but under their direction the goods were landed on the quays at the West India docks in the names of Williams and Wilson, their names being in the manifest as consignees. Aw ap- plication was made for the freight by the ship-brokers for the plaintiffs to the defendants as brokers for the consig- nees in August, 1810, and the defendants referred them to the consignees at Liverpool, to whom the plaintiffs ihen addressed a letter, dated 7th of September, 1810, demand- ing 2904/. 19s. Sd. as the amount of the freight. Soon afterwards Williams and Wilson became bankrupt y, and the plaintiffs proved this as a debt under their coinniission on the 4th of May, 1811, and stated that their demtnid arose under the cha;*ter-party of 3d October, 1809. Ou L a 148 APPENDIX. the 3d of July, 1810, the order of Williams and Wilson to the West India Dock Company for the delivery of the goods to the defendants was received by the officer at the docks, which order was to the following effect : " To the directors of the West India Dock Company. Please to deliver to Messrs. Kymer and Co., or their order, the fol- lowing goods consigned to us (inter alia) the cargo of the Harmony" (Signed Williams and Wilson.) Under this order the goods were transferred to the defendants, and were afterwards sold by theni in the course of July and August, and the amount credited by them to Williams and Wilsons account. It was objected that the action would not lie against the defendants, but should have been brought against Williams and Wilson, who were the con- signees, and to whose order the goods were delivered to the defendants as their brokers, and that the entry of the goods at the custom-house in the defendants* names would not make them liable ; and Roberts v. Holt, Artaza v. Smallpiece, and the case of the Theresa Bonita, were cited in support of this objection. There was also another objec- tion made, viz. that the plaintiffs had parted with their lien by landing the goods at the West India docks, and there- fore there was no continuing lien at the time of the deli- very to the defendants, the parting with which, where it still continues, may be a good consideration to raise an implied assumpsit to pay the freight, against the person in whose favour the lien is relinquished. Lord Ellenbo- rough, Ch. J. upon the last objection stated to the jury, that as the goods were removed out of the ship, and depo- sited at the West India docks by act of law, he was of opinion it ought not operate to the prejudice of the plain- tiff's lien, which therefore still subsisted ; and upon the first objection he left the question to the jury, whether the defendants had promised to pay the freight in considera- tion of the plaintiffs having waved their lien, which pro- APPENDIX. 149 mise his Lordship was inclined to think might be implied from the circumstances. The jury found a verdict for the plaintiflfs. The case afterwards came before the court in last Michaelmas term, upon a rule nisi, which had been obtained in Easter term for a new trial, when the objec- tions above stated were more fully considered. Lord Ellenborough, Ch. J. There is certainly one circumstance m this case which forms a material distinction between this and the case of Cock v. Taylor, and which seems to influ- ence the judgment of my brethren, and therefore I should wish the case to go to a new trial, in order to enquire into the fact on which that distinction is founded, and then, if it should be deemed necessary, to consider farther of that distinction. The circumstance is this, that in Cock v. Taylor the goods were delivered under the bill of lading only; here they were delivered to the defendants, who were entitled to have them under the bill of lading, and might have enforced their delivery under it, and from whom they might have been withheld until the freight was satis- fied : but it is said they obtained possession of them under an order for delivery from the consignees, which imports that the consignees still continued the proprietors, and not under the bill of lading, although they were indorsees of the bill of lading at the time. Then the question is, can the law extend the lien as against persons who do not claim in that character under which they would be liable for freight, viz. as indorsees of the bill of lading, but as the agents of the consignees, so as to make the parting with the lien to them a ground of consideration for an im- plied assumpsit by them to pay the freight ? That would be carrying the law one step farther than was done in Cock V. Taylor, and in a case of lien we should be anxious to tread cautiously and on sure grounds before we extend it beyond the limits of decided cases. It struck me at the trial that the defendants, being indorsees of the bill of la- 150 APPENDIX. ding, if they took the benefit derived under it, not having renounced their claim as such indorsees, must be consi- dered as taking under it, and chargeable according to the terms of that instrument, which was essential to their title and which gave them the means of enforcing the delivery ; but what weighs with the court is this, that they obtained the gDods not by the strength of their title as indorsees, but as agents or servants of the consignees. The court therefore think it right that it should go down again in order to see if that fact can be varied. Grose, J. There \s a very material difference between this case and Cock v. Taylor. This appears to me to be a new case. Le Blanc, J. It would be carrying the authority of Cock v. Taylor further than was intended or foreseen at the time when that case was decided, to hold that it governed the present. It is easy to raise an implied assumpsit where the parties are cognizant of the terms on which they are dealing, as where the dealing is between the owner or cap- tam and the defendants, but it is not so easy where the dealing, as in this case, is between the owners and a third party, viz. Williams and Wilson, for 1 conceive that here the owners must be taken to have delivered the goods on the faith of Williams and Wilson. Bayley, J. 1 think Cock V. Taylor was rightly decided. In that case the de- fendant received the goods as a purchaser of the bill of lading, making that his title to them, and virtually consent- inf the bankruptcy, whether of those two acts preceded the other. We decide on a general ground. On the question, whether there be or be not any lien whatever in the defendant, the plaintiff contends that the defendant has no lien, on one paiticular, and one ge- neral ground ; he insists, on the authority of a case in Bullers Nisi t*rrus, that wherever there is a specific agreement for the pnce of the thing to be done about the goods, there the pait\ has no hen; that here, by the char- ter-party, a specific sum is to be paid in a specific manner, APPENDIX. 175 and that therefore no lien exists. With respect to that proposition, it is not true that a hen cannot exist where there is a stipulation for a particular sum to be paid for that which is to be done about goods. I am not prepared to say whether a lien may, or may not exist, in a case where not only a specific sum, but a specific mode of payment is stipulated for, as for example, by bills payable at certain periods. We decide on the more general ground, that there is no lien whatever under the circumstances of this case. The defendant is the owner of a ship, the bankrupt is the charterer of the ship ; and for one sum of 2100/. to be paid at different periods, he was to have the whole use of this ship for the voyage out to the Cctpe of Good Hope, and home to London. It is clear that he might have put this up as a general ship, have filled her with the goods of other persons, and when they come home, the defendant could not have touched those goods by way of detaining them till his freight was paid him by the charterer. But here, it is contended, inasmuch as these are the goods of the charterer put on board by him- self, the defendant might detain these goods till those dis- honoured bills were paid by the charterer. He could not have had this right, unless he had a lien on the goods : he could not have a lien on the goods, unless he had in some sort the possession of the goods : here, he had no posses- sion of the goods whatsoever. No case is produced, that bears directly on the subject, and we must consider the case on principle. If Parish v. Crawford had stood un- impeached, I should have thought it a strong authority, that the possession of the chartered ship remained with the owner, because of his liability to those who put their goods on board. It certainly was there held, that one who put his goods on board by the consent of the charterer, might recover for the loss of the goods, not against the charterer, by whose authority he loaded them, but against the owner. 176 APPENDIX. But that case has frequently been questioned, and in two cases formally overruled. I therefore attribute no weight to that case. It is well known that an owner cannot be guilty of barratry. In a case before Lord Mans/ield, Ch. J. a question arose on an insurance cause, whether the charterer could commit barratry ; and it was held that he was the owner of the ship for the voyage, and being such, he could not commit barratry in any other character. In the present case the consignor is a bankrupt : he was the owner of this ship for the voyage. He puts his own goods, then, on board his own ship, and the master and crew ought to have obeyed his orders for the voyage. Lord Hardzeicke, Chancellor, in Faul v. Birch, says, " the sum reserved is improperly termed freight, for it is rather for the hire of the ship." It is, indeed, more like rent than freight. If, then, the bankrupt be owner for the voyage, and if it be the duty of the master and crew to obey the owner's instructions, when the bankrupt puts his own goods on board his own ship, the master and crew ought to obey him until the voyage is ended, which is not until a full delivery is made of the goods ; and until that time the possession of the ship does not revert to the owner. I am therefore of opinion that the plaintiff is en- titled to his judgment. Dallas, J. If in this case it were necessary to pronounce an opinion upon the several points which have been argued at the bar, I, for one, should be solicitous to take more time to look into them. But where several grounds are taken in a case, some of which are doubtful, but others clear, if the case can be decided on the latter, it is unnecessary to go into the for- nier. I agree with my Lord that there is in this case no possession in the defendant, and there can be no lien, un- less there is a possession. It may be considered that the charterer of a ship is during the existence of the charter- party to all intents and purposes the owner of the ship : APPENDIX. 177 the bankrupt had put these goods on board in that cha- racter, and the defendant had no legal right to resume the possession of the ship until the goods were unloaded, and therefore he had no right to detain the goods. Park, J. It is unnecessary, for the reasons assigned by my Lord Chief Justice, for me here to enter into the questions made at the bar. The first question is, then, whether the defen- dant had any possession of the goods ? for, if he had no possession, he had no lien. On the first day of the argu- ment the judgment of Lee, Ch. J. in the case of Parish V. Crarcford was cited. In James v. Jones it was not necessary to overrule it in terms, but the last-mentioned judgment is wholly inconsistent with the former case. In Macketizie v. Rowe, Lord EUenborough also, on consi- deration, differs from Parish v. Craicford. In a subse- quent case, Fraser v. Marsh, the point was not the same, but the attention of the court was called to Parish v. Crawford and James v. Jones, and the court decided adversely to the former case ; for these reasons I am of opinion with my Lord and my brother Dallas, that in this case there ought to be Judgment for the plaintiff. Gladstone -v. Birley, 1817, 2. Merivale, 401. The court of K. B. having determined, " that the ship- owners had not a lien upon the goods brought home, for money claimed to be due in respect of goods put on board and relanded, nor in respect of dead freight, nor in re- spect of demurrage," the present bill was filed by the de- fendants at law, for the purpose of obtaining a declaration that the ship-owners were entitled to a lien in equity by virtue of the clause in the charter-party. The Master of the Rol/s. The question in this case is, whether the last clause in the charter-party can have any different effect in equity from what it has been determined to have at law? The clause is this — " And, lastly, for the true performance I7B APPENDIX. of every article, matter, and thing herein contained, the parties hereby mutually bind and oblige themselves, espe- cially the owners, the ship, her tackle, and appurtenances, and Holt (the freighter) the goods and merchandizes to be laden and put on board the same vessel on the said voyage, each unto the other and others of them, in the penal sum of 3000/. sterling, to be forfeited and paid by the party delinquent, to the party observant, to the true and punctual performance thereof." It has been decided at law, that this gave the present plaintiffs no lien on the goods brought home in the ship, either for what is called the dead freight, or the demurrage that became due by virtue of the cove- nants on the part of the freighter. The ground of the ' judgment was not, as I understand the report, that such a lien might not have been contracted for, but that the clause did not contain a contract to that effect. Mr. Justice Le Blaiic says, " The clause could not mean to give the ship-owners a lien : if such had been its intention, it might 1 easily have been expressed in a very few words, that the ship-owners should have a right to detain the goods which : should be brought home, until all their demands under the 1 covenants were satisfied." Now there can be but one right construction of the clause ; and, if it could be said that the Court of King's Bench had ill construed it, this is not a court of appeal in which their decision can be cor- rected. The plaintiffs however suppose, that although a i court of law has said that the clause does not give them a | lien, a court of equity may say that it gives them what is precisely tantamount to a lien, namely, a right to have their demand satisfied out of the produce of the goods in preference to any other creditors of the bankrupt freighter. Putting this clause out of the question, it was not con- tended that equity gives the ship-owner any lien for his freight beyond that which the law gives him. There are, to be sure, liens which exist only in equity, and of which APPENDIX. 179 equity alone can take cognizance : but it cannot be con- tended that lien for freight is one of them. As to liens on the goods of one man in the possession of another, I know of no difference between the rules of decision in courts of law, and in courts of equity. The question that so fre- quently occurs, whether a tradesman has a lien on the!' goods in his hands for the general balance due to him, orj only for so much as relates to the particular goods, is de-,, cided in both courts in the same way, and on the same I grounds. To extend the lien, the party claiming it must 'I shew an agreement to that eflfect, or something from which an agreement may be inferred, — such as a course of deal- ing between the parties, or a general usage of the trade. Lien, in its proper sense, is a right which the law gives. But it is usual to speak of lien by contract, though that be more in the nature of an agreement for a pledge. Taken either way, however, the question always is, whether there be a right to detain the goods till a given demand shall be satisfied. That right must be derived from law or con- tract. A court of competent jurisdiction has decided that neither law nor contract has, in this case, given any such right. And, without directly contradicting that decision, it is impossible for me to say that the plaintiffs have a right to be first paid out of the produce of the goods ; for, if they had any such right, they would also have had a right to retain possession till they were paid. It was asked, what effect the clause could have if it gave no lien either in law or equity. A court of equity is not bound to find an equitable effect for a clause, merely because the con- struction which a court of law has put upon it would leave it inoperative. In truth, it has been copied from foreign charter-parties, with very little consideration of ^he effect that might be allowed to it by the law of this country. I think it very probable that, m other countries, it would have the eftect of entitling the ship-owner to retain the N 2 ISO APPENDIX. cargo for every sort of demand that could accrue to him under the charter-party. If that be not the effect of it, I do not see what other it can have. But, bound as I am by the construction which it has received from a court of law, and conceiving that this is not a case in which equity can give a lien that does not legally exist, I must dismiss the plaintiff's bill. — —Bill dismissed without costs. Lucas v. Dorrien, 1817, 7. Taunton, 278. — This was an action of trover for certain sugar and molasses, and for an indenture of lease. The declaratiois contained counts, laying the possession in the bankrupt before his bankruptcy, and in the plaintiffs, as his assignees, after- wards. The defendants pleaded the general issue. The cause was tried at the sittings at Guildhall, after Triniti/ term, 1816, before Gibbs, Ch. J., when the jury found a verdict for the plaintiffs, damages 12,000/., subject to a case. On 4th February, 1814, the bankrupt applied to ihe defendants, who were his bankers, to advance him 10,000/. upon his note of hand, and the collateral security of certain sugars, then lying in the warehouses of the West India Dock Company, and at other places. The defen- dants, being satisfied with the proposed security, agreed to advance the 10,000/., whereupon a note of hand for that sum was drawn, and signed by the bankrupt, and delivered to the defendants, together with the dock checks for such sugars, which were all duly indorsed by the bankrupt, and the defendants thereupon advanced the 10,000/. Of such sugars, part were afterwards sold by mutual consent, and the net proceeds thereof placed to the credit of the bank- rupt's banking account w ilh the defendants ; and other parts thereof were, at the bankrupt's request, exchanged for certain quantities of molasses, then lying also in the Dock Company's warehouses ; and the dock checks lor such molasses were in like manner indorsed by the bank- rupt, and delivered to the defendants. The bankrupt's said APPENDIX. 181 note of hand fell due on the 11th February, 1815, but it not being convenient to him then to pay it, the defendants, at his request, agreed to continue their said advance for one month longer, upon the bankrupt's renewed note of hand for the like sum, and the collateral security of certain sugars and molasses to be specified on the back of such renewed note. On the 23d Februari/, a note of hand of that date, for payment to the defendants of 10,000/. at one month after date, value received, with interest, and ex- pressing that certain sugars and molasses, as specified on tlie hack, were left as a collateral security, (the numbers, niarks of the cask, and other description whereof, were indorsed on the note), was accordingly drawn and signed by the bankrupt, and delivered to the defendants, together with the dock checks for the last-mentioned sugars and molasses, which checks were all duly indorsed by the bank- rupt. The only matters in dispute were the hogsheads, casks, and barrels of molasses, referred to in the four dock checks, whereof copies were annexed to the case,* and * The form of one of these dock checks, for wliich printed blanks are prepared and kept by the Dock Company, is given below : — " Tills is to certify, that the uudermentioned order, for goods depo- sited in warehouse No. of the If est India Dock Company, has this day been lodged with me. No. of Order. Marks of Descrip- tion of Ship. Master. I 1 By whom In whosci granted, favour. 1 Lots. Goods. a> c: 6 6 d JS CO tH ^ ^ ^ s C >» ■s = § a oo ,