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mercial necessity, and is thought to stand upon peculiar rounds of maritime policy.a It does not apply to cases of finding upon land; and though the taking care of property found for the owner, be a meritorious act, and one which may entitle the party to a reasonable recompense, to be recovered in an action of assumpsit, it has been adjudged not to give a lien in favour of the finder, and he is bound to deliver up the chattel upon demand, and may then recur to his action for a compensation. If the rule was otherwise, says Ch. J. Eyre, il designing persons might turn floats and vessels adrift, in order that they might be paid for finding them; and it is best to put them to the burden of making out the quantum of their recompense to the satisfaction of a jury. The statute of this statec gives to the person who takes up strayed cattle the right to demand a reasonable charge for keeping them; and, indepeudent of that provision, there is no lien upon goods found.
A general lien for a balance of accounts is founded on custom, and is not favoured, and it requires strong evidence of a settled and uniform usage, or of a particular mode of dealing between the parties, to establish it. General liens are looked at with jealousy, because they encroach upon the common law, and destroy the equal distribution of the debtor's estate among his creditors.d But by the custom of the trade an agent may have a lien upon the property of his employer intrusted to him in the course of that trade, not only in respect to the management of that property, but for his general balance of accounts. The usage usage of any trade sufficient to establish a general lien, must, however, have been so uniform and notorious, as to warrant the inference, that the party against whom the right is claimed had knowledge
a Story, J. 2 Mason, 88.
b Nicholson v. Chapman, 2 H. Blacks. 254.
e Laws of N. Y. sess. 36. ch. 21.
d Rushforth v. Hadfield, 6 East, 519. S. C. 7 East, 224.
of it. This general lien may also be created by express agreement; as where one or more persons give notice. that they will not receive any property for the purposes of their trade or business, except on condition that they, shall have a lien upon it, not only in respect to the charges arising on the particular goods, but for the general balance of their account. All persons who afterwards deal with them with the knowledge of such notice, will be deemed to have acceded to that agreement. This was the rule laid down by the Court of K. B. in Kirkham v. Shawcross b but the judges in that case declared, that the notice would not avail in the case of persons who, like common carriers and inn-keepers, were under a legal obligation to accept employment in the business they assume, for a reasonable price to be tendered to them, and who had no right to impose any unreasonable terms and conditions upon their employers, or refuse to serve them. The same intimation that a common carrier could not create any geheral lien as against the person who employed him, by means of notice, was given by the judges in Oppenheim v. Russell but a contrary doctrine was strongly implied in the subsequent case of Rushforth v. Hadfield,d and the court in that case, while they condemned the justice and policy of these general liens, seemed to admit, that a common carrier might establish such a right against his employer, by showing a clear and notorious usage or a positive agreement. It was again stated as a questionable point, in Wright v. Snell, whether such a general lien could exist as between the owner of the goods and the carrier, and the claim was intimated 'o be unjust. It must, therefore, be considered as a point still remaining to be settled by judicial decision.
Possession of the goods is necessary to create the lien;
a Rooke, J. 3 Bo. & Pull. 50.
b 6 Term Rep. 14.
c 3 Bs. & Pull. 42.
d 7 East, 224.
e 5 Barn. & Ald. 350.
and the right does not extend to debts which accrued be fore the character of factor commenced ; nor where the goods of the principal do not, in fact, come to the factor's hands, even though he may have accepted bills upon the faith of the consignment, and paid part of the freight.5 And though there be possession, a lien cannot be acquired, where the party came to that possession wrongfully. This would be as repugnant to justice and policy, as it would be to allow one tort to be set off against another. The right of lien is also to be deemed waived, when the party enters into a special agreement, inconsistent with the existence of the lien, or from which a waiver of it may fairly be inferred, as when he gives credit by extending the time of payment, or takes distinct and independent security for the payment. The party shows, by such acts, that be relies, in the one case, on the personal credit of his em ployer; and, in the other, that he intends the security to be a substitution for the lien; and it would be inconvenient that the lien should be extended to the period to which the security had to run. This was the doctrine sustained in Gillman v. Brown,d in respect to the vendor's right of lien as against the vendee, and the principle equally ap. plies to other cases; and it was also explicitly declared by Lord Eldon, in Cowell v. Simpson. The lien is also destroyed, when a factor makes an express stipu lation, on receiving the goods, to pay over the pro
a Houghton v. Matthews, 3 Bos. & Pul. 458.
b Kinlock v Craig, 3 Term Rep. 119. 783.
c Lempriere v. Pasley, 2 Term Rep. 485. Madden v. Kempster, 1 Campb. N. P. Rep. 12,
d 1 Mason's Rep, 191,
e 16 Vesey, 275. Mr. Metcalf, in his neat and accurate digest of the cases on the doctrine of lien, contained in a note to his edition of Yelverton's Rep. 67. a. shows, by cases as ancient as the Year Books, 5 Edw. IV. 2. pl. 20. and 17 Edw. IV. 1. that the lien is extinguished by postponement of credit to a future day,
ceeds. So, if the party comes to the possession of goods without due authority, he cannot set up a lien against the true owner; as, if a servant delivers a chattel to a tradesman without authority, or a factor, having authority to sell, pledges the goods of his principal.b
Possession is not only essential to the creation, but also, to the continuance of the lion and where the party volum tarily parts with the possession of the property upon which the lien has attached, he is devested of his lien. If the lien was to follow the goods after they had been sold or delivered, the incumbrance would become excessively inconvenient to the freedom of trade, and the safety of purchasers. But if the delivery to a third person be merely for the benefit of the factor, and as a servant to the factor, and with notice of the lien, it is in effect a continuance of the factor's possession, and the lien is retained. Nor is it universally true, that the actual delivery of part of the goods. sold on an entire contract, is equivalent to an actual delivery of the whole. It will depend upon the terms of the contract and the intention of the parties; and whenever the property in the part of the goods not delivered does not pass to the vendee, the vendor's right of lien for the price is, of course, preserved on the part retained.e
A factor has not only a particular lien upon the goods of his principal in his possession, for the charges arising on account of them, but he has a general lien for the balance of his general account, arising in the course of dealings between him and his principal; and this lien extends to all
Walker v. Birch, 6 Term Rep. 258.
b Daubigny v. Duvall, 5 Term Rep. 604. Hiscox v. Greenwood 4 Esp. 174. M'Combie v. Davies, 7 East, 5.
c Jones v. Pearle, Str. 556. Sweet v. Pym, 1 East, 4.
d M'Combie v. Davies, 7 East, 5. Urquhart v. M.Iver, 4 Johns. Rep. 103.
e Blake v. Nicholson, 3 Maul, & Selw. 167. Wilde, J. in Parks ▾ Hall, 2 Pickering, 213.
the goods of the principal in his hands in the character of factor. The factor has a lien also on the price of the goods which he has sold as factor, though he has parted with the possession of the goods; and he may enforce payment from the buyer to himself, in opposition to his principal. This rule applies, when he becomes surety for his principal, or sells under a del credere commission, or is in advance for the goods by actual payment.
Attorneys and solicitors, as well as factors, have a general lien upon the papers of their clients, for the balance of their professional accounts, but the hien is liable to be waived or devested, as to papers received under a special agreement or trust, or where they take security from their clients. The solicitor or attorney has two kinds of liens for his costs; one on the funds recovered, and the other on the papers in his hands. The client cannot get back the papers, without paying what is due, (whatever becomes of the suit,) not only in respect of that business for which the papers were used, but for other business done by him in his professional character. The attorney's lien for costs extends to judgments recovered by him; and yet a bona fide settlement or payment by the debtor, before notice of the lien, will prevail against it, and the attorney's lien upon a judgment yields to the debtor's equitable right of set-offe We follow in this state the rule of the English Court of Chancery, and of the Court of C. B.; and consider the lien as subject to all the equities that may attach on the fund, and as extending only to the clear balance resulting
a Kruger v. Wilcox, Amb. 252. Lord Kenyon, in 6 Term Rep. 262. Chambre, J. 3 Bos, & Pull. 489.
Chambre, J. 3 Bos. & Pull.
Drinkwater v. Goodwin, Cowp. 251. 489. Hudson v. Granger, 5 Barn. & Ald 27.
c Lord Mansfield, Doug. 104. Ex parte Sterling, 16 Vesey, 258. Cowell v. Simpson, ibid. 275 Ex parte Nesbitt, 2 Sch. & Lef. 279.
d Sir Thomas Plumer, 2 J. & Walk. 218.
e Vaughan v. Davies, 2 H. Blacks. 440.