(1.) Liens at common law, general or specific. MENTION has been already made of that particular branch of lien which relates to real estate (a). In the present chapter we shall consider the subject of liens more generally. Liens may subsist both at law and in equity, although there are some liens which subsist in equity only (b). Liens are general or specific. By the common law, every one Specific liens. has a lien on a specific article delivered to him to work on for the amount of the labour done on the article (c), whether the price be fixed by contract or not (d); and this has been extended to give a (a) Sup. p. 448. (b) 2 Mer. 403. (e) Scarfe v. Morgan, 4 M. & W. 270. And as to what amounts to waiver of such a lien, see White v. Gainer, 2 Bing. (d) Chase v. Westmore, 5 M. & S. 180. When rights inconsistent exist. Lien from labour employed. certificated conveyancer or special pleader a lien on the papers in his hands, so far as respects his costs on that particular account (e). But in such a case the work must be done on the papers, so as to give the additional value, and not merely be done with and in respect of those papers, and such a plea was held bad (f). So a shipwright has a lien on a ship for repairs (g) so long as he remains in possession (). An auctioneer, to whom a mortgage deed has been delivered to obtain payment of the principal and interest due upon it, has no lien upon the deed for his charges for making application for such payment, upon the ground that there is no work done upon the subject-matter in dispute (i). So there is no such lien for agistment (k). The right to this lien, too, does not exist where, by express contract, or from the nature of the contract, the bailor retains rights inconsistent with the lien, as in the case of horses put at livery, where, by the nature of the contract, the possession is to be redelivered to the owner whenever he may require it (7). So where milch cows are agisted (m); and the same seems to apply to racers in the hands of a training groom, unless delivered to be trained for running a particular race (n); but it has been decided that this lien may co-exist with an express contract as to the price, unless such contract contain a time or mode of payment inconsistent with the implied lien, and it is not confined to those cases where there is no manner of contract between the parties, except such as the law implies (o). The right to redemand the thing bailed, and the right to recover payment for the work done upon it, being contemporaneous, the locator operis (the employer of the artisan), has no right to redemand possession from the conductor operis (the artisan), without paying or tendering the amount due for the work. This appears to be the real character of that which for the sake of brevity is called a lien at common law; and therefore, where there is a specific agreement fixing the time of payment to a particular period, the (e) Hollis v. Claridge, 4 Taunt. 807. (g) Franklin v. Hosier, 4 B. & Ald. 341. (h) Neptune, 3 Knapp, 96. (i) Sanderson v. Bell, 2 Cr. & M. 304. Jackson v. Cummins, 5 M. & W. 342. (m) Jackson v. Cummins, sup. (n) See the remarks of Parke, B. in Jackson v. Cummins, sup. ; and in Scarfe v. Morgan, 4 M. & W. 270. (0) Chase v. Westmore, 5 M. & S. 180. lien does not in general attach (p), because inconsistent with the right of intermediate delivery (q). On the principle of labour employed upon the subject-matter, it seems that an accountant has a lien as against a trustee in bankruptcy upon books intrusted to him for examination and arrangement by a trader before his bankruptcy (»). This species of lien, however, does not extend to general balances or money due on former or different accounts (s), though such a claim is not a waiver of the lien that the party is entitled to (f). liens. A lien on goods is a special property sufficient to support the Property in affirmative in an interpleader issue between the party entitled to the lien and the execution creditor of the owner of the goods, whether the former had any property in the goods as against the latter or not ("); indeed, any person having the right of possession of goods may sue in respect of the conversion of them, and allege them to be his property (v). So, before the Jud. Act, a lien was admissible as a defence under a plea denying property in the plaintiff, and need not have been specially pleaded (w). And a lien under an agreement, that a creditor should hold a particular chattel until the debt is paid, is not lost by a wrongful removal of the thing without the consent of the creditor, who may seize again (x). But the case referred to seems rather the case of a pledge than a lien. extends to The cases turn principally on the point, whether the lien is con- Whether fined to the particular transaction, or is extended to the general general balance. Lord Mansfield has stated (y) that the convenience of commerce and natural justice are on the side of liens, and that therefore, of late years, Courts have leaned that way :-first, where it is an express contract; secondly, where it is implied from the usage of trade; or thirdly, from the manner of dealing between the parties on the particular case; or fourthly, where the party has acted as (p) See Norris v. Williams, 1 Cr. & M. 842; note to Barnett v. Brandao, 6 Man. & G. 658. (9) See 4 M. & W. 284; 5 M. & S. 186. (r) Exp. Southall, 17 L. J. Bk. 21. (s) Exp. Ockenden, 1 Atk. 235; Bock v. Gorrissen, 6 Jur. N. S. 547, M. R. ; reversed, 7 ib. 81; and 30 L. J. Ch. 39. (t) Scarfe v. Morgan, sup. C.-VOL. I. (u) Rogers v. Kennay, 9 Q. B. 592, the lien in this case was however by agreement. (v) Per Parke, B., in Legg v. Evans, 6 M. & W. 41. (w) Richards v. Symons, 8 Q. B. 90. (x) Ib. There was however in this U U balance. factor. It may not be improper briefly to consider the doctrine under these several divisions. (2.) Lien by contract. In the case of an express contract, an agreement amongst a number of dyers, bleachers, &c., entered into at a general meeting, that they would not receive any goods without having a lien on the goods in hand for a general balance, was held good in law; and every person afterwards sending goods to such persons with notice of that agreement must be considered as assenting to, and bound by, it (). So, where a railway company contracted with A. that he should build a bridge for the company on their railway, A. to provide implements and materials, and the company to have a lien on such materials as should for the time being be on the ground where the bridge was to be built, as a security for the completion of the works. It was held, that the lien was a shifting one, attaching on such articles as were brought on the land from time to time, and ceasing as to such as were removed (a). Where a consignment note signed by the consignor provided that the carrying railway company should hold the goods subject to a general lien for carriage and other charges, and the consignee refused to accept the goods, in an action for detention by the consignor's trustee in bankruptcy, it was held that the refusal did not operate to render the company involuntary bailees, or deprive them of their lien under the contract (b). A railway company had by agreement a general lien for freight upon goods in their hands, to take effect immediately upon the owner thereof going into liquidation. Semble this did not give the company a right to detain goods ordered by the receiver under the owner's liquidation for carrying on his business, and paid for with the receiver's own money; but held, that the Court of Bankruptcy had no jurisdiction to order the company to repay the amount to the receiver who had paid the claim under protest (c). (z) Kirkman v. Shawcross, 6 T. R. 14. (a) Hawthorn v. Newcastle Railway, 3 Q. B. 734. (b) Westfield v. G. W. R. Co. 52 L. J. Q. B. D. 276. (c) Re Bushell, 22 Ch. D. 470, C. A. (3.) Lien by usage. In the case of implication from the usage of trade, it was decided, that a packer had a lien for his general balance, even including loans of money (d). But dyers (e) and common carriers (ƒ), it seems, have not a lien by general usage. And such lien by general usage, once judicially ascertained and established, becomes part of the law merchant, which Courts of justice are bound to know and recognise (g). brokers. By the law merchant, bankers (), and brokers (i), have a lien Bankers and on all bills, papers, and securities of their customers in their hands, unless there be an express contract or circumstance that shews an implied contract inconsistent with the lien (); and the trustee in bankruptcy of the banker, by virtue of the lien, may sue the drawer of securities so deposited, which are payable to bearer (1). But this species of lien only affects things which come into the Banker. hands of the party claiming it in the way of his trade, and may be rebutted by an express or implied contract to the contrary. Thus, it was held that a banker had no lien upon a lease accidentally left with him after he had refused to advance money upon it (m); so, where exchequer bills (though these are negociable securities passing to the bonâ fide holder for value) were deposited at a banker's in a box belonging to the depositor, of which he kept the key, and when renewable, the bills were given by the depositor to the bankers, in order that they might receive the interest, and the new bills were then handed over to the depositor to be placed in the box, and the interest received carried to his account, it was held by the House of Lords that the bankers had no lien for their general balance on the bills (»); so a deposit of securities not negociable to secure a certain (d) Exp. Deeze, 1 Atk. 228; Green v. Farmer, 4 Burr. 2214; Re Witt, 2 Ch. D. 489, C. A. (e) See Green v. Farmer, sup.; Close v. Waterhouse, 6 East, 523. (f) Rushforth v. Hadfield, ib. 518. (g) Brandao v. Barnett, 3 C. B. 530; 12 C. & F. 787; Barnett v. Brandao, 6 Man. & G. 665. (h) Davis v. Bowsher, 5 T. R. 488; Barnett v. Brandao, sup.; Brandao v. Barnett, sup.; Bolland v. Bygrave, Ry. & Mo. 271. (i) Cooke's B. L. 442; Hewison v. Guthrie, 2 Bing. N. C. 755; Jones v. Peppercorne, Joh. 430; 28 L. J. Ch. 158; (k) London Chartered Bk. of Australia (1) Scott v. Franklin, sup. (m) Lucas v. Dorrien, 7 Taunt. 278. |