3 Chap. II. also to receive his goods. He has, in return, a lien on the goods brought to the inn by the guest as his goods, whether they belong to him or not; but not on goods brought to the inn by a person who is not a guest, or on goods supplied by a third person for the temporary use of the guest at the inn, and known by the innkeeper to be the property of the third person.5 Innkeepers Carriers. Shipowners. 4 The lien is on all the goods brought by the guest to the inn in respect of the whole of the innkeeper's bill against the guest." 6 It has been held that the innkeeper has a lien on goods which are the separate property of a married woman, where she and her husband stay at an inn and credit is given to the husband.7 In addition to the innkeeper's ordinary lien, he has, by the Innkeepers Act, 1878, a power to sell by public auction goods which have been left in his charge or custody for six weeks, and to reimburse himself out of the proceeds the amount due to him from the person depositing the goods for board or lodging, or the keep and expenses of horses or other animals.8 Under 26 & 27 Vict. c. 41, an innkeeper may protect himself from liability to make good any loss of property brought to his inn to a greater amount than £30 except (inter alia) when the property shall have been lost " through the wilful act, default, or neglect of such innkeeper, or any servant in his employ." A carrier has a lien on the goods that he carries for the price of the carriage, 10 but not for charges for booking or warehouse room, though, by the usage of a particular trade, or by special bargain, his lien may extend to charges of this nature.12 The owner of a ship has a lien on the goods carried by him for the freight,13 i.e., the sum payable to him for the carriage of the 1 Hawthorn v. Hammond, 1 C. & K. 404; Rex v. Ivens, 7 C. & P. 213; 48 R. R. 780; Gordon v. Silber, 25 Q. B. D. 491. 2 Thompson v. Lacy, 3 B. & Ald. 283; 22 R. R. 385. 8 Threfall v. Borwick, L. R. 10 Q. B. 210; Snead v. Watkins, 1 C. B. N. S. 267; Yorke v. Grenaugh, 2 Ld. Raym. 866; Turrill v. Crawley, 13 Q. B. 197 ; Gordon v. Silber, sup. ; Robins v. Gray, [1895] 2 Q. B. 501. Calye's Case, sup.; Smith v. Dearlove, 6 C. B. 132. 5 Broadwood v. Granara, 10 Ex. 417. See Robins v. Gray, sup. 6 Mulliner v. Florence, 3 Q. B. D. 484. Gordon v. Silber, sup. 8 41 & 42 Vict. c. 38. 9 See Medawar v. Grand Hotel Co., [1891] 2 Q. B. 11. 10 Per Lord Ellenborough, C.J., Rushforth v. Hadfield, 6 East, 525. 11 Lambert v. Robinson, 1 Esp. 119. 12 Rushforth v. Hadfield, 6 East, 519; 7 East, 224; 8 R. R. 520; Aspinall v. Pickford, 3 B. & P. 44, n. 13 As to the meaning of "freight," see post, p. 113. goods, when he is ready and able to deliver them; and he has a lien upon the luggage of a passenger for his passage money. If he is prevented from delivering them by their nature, i.e., owing to goods of that nature being prohibited by law from being landed, he also has a lien for the costs of storage and back freight, i.e., the costs of bringing them back to the port of shipment." Where the cargo is consigned to separate consignees, the part sent to each consignee is subject only to the freight earned in respect of it. The lien is of course lost by delivery of the goods." Chap. II. contract. A lien which is created by express contract may extend to a Lien by case where no lien at common law would arise, and is regulated express entirely by the terms of that contract; and, where a lien arises. at common law, it may be varied or restricted by express contract; but if a contract contains terms inconsistent with the existence of a lien, then no lien can arise. 8 Where no lien exists by common law or express contract, it Implied lien. may be implied either from previous dealings between the same parties or from a general and notorious usage of trade." By a general lien is meant the right of the bailee who carries General lien. on a certain kind of trade to retain the goods till the balance due to him from the bailor in respect of that trade is satisfied. It arises: (1) In those trades in which it is usual for advances to be made by the bailee to the bailor; 10 (2) In other trades, by usage. If it can be shown that, according to the custom of any particular trade, it is usual for advances to be made by the bailee to the owner of the goods, the right to general lien is admitted; but, in other trades or localities, where it is alleged that the lien 1 Kirchner v. Venus, 12 Moore, P. C. 390. Wolf v. Summers, 2 Camp. 631; 12 R. R. 764. 3 Cargo ex Argos, L. R. 5 P. C. 134. * Bernal v. Pim, 1 Gale, 17. North v. Gurney, 1 J. & H. 509. See s. 494 of the Merchant Shipping Act, 1894. Post, p. 61. Richards v. Symons, 8 Q. B. 90; Swainston v. Clay, 11 W. R. 811. Norris v. Williams, 1 Cr. & M. 842 ; 10 Cumpston v. Haigh, 2 Scott, 684; 2 B. 8 Chase v. Westmore, 5 M. & S. 180; Rushforth v. Hadfield, 7 East, 224; 8 R. R. 520. 10 Bock v. Gorrissen, 2 De G. F. & J. 434. Chap. II. exists by usage, the usage must be proved to exist. A general lien may be excluded by express contract; for example, a factor, to whom goods are consigned, does not acquire a general lien on the goods if he accepts the consignment subject to special directions as to the application of the cargo or the proceeds of sale of it.2 General lien does not affect rights of third parties. Factors. Where a bailee claims a general lien by usage, he must show that the general balance that he claims arises from, and that the goods were delivered to him in, exercise of a trade in respect of which the usage exists.3 A general lien does not affect the rights of third parties; so that if, for example, a common carrier obtains, by agreement with the consignee, a lien for the general balance of account between them, this does not prevent the consignor from stopping in transitu.5 6 "A factor is a person to whom goods are consigned for sale by a merchant residing abroad or at a distance from the place of sale; and he usually sells in his own name without disclosing that of his principal." "He is an agent, but an agent of a particular kind. He is an agent entrusted with the possession of goods for the purpose of sale."7 A mere agent has (as such) no lien, but a factor has a general lien on goods; and he does not lose his character of factor or the right of lien attached to it by reason of special instructions to sell goods at a specified price and in the name of the principal.8 It is the custom for factors to make advances to their principals, and therefore a factor has a lien over goods which come into his possession as factor,10 which lien extends not only to those advances but to the general balance of his account against his principal arising from his employment.11 1 Bock v. Gorrissen, sup.; Cumpston v. llaigh, sup.; Re Catford, 71 L. T. 584. 2 Frith v. Forbes, 4 De G. F. & J. 409; Ex p. Heywood, 2 Rose, 355. 3 Dixon v. Stansfeld, 10 C. B. 398. 4 Wright v. Snell, 5 B. & Ald. 350; 24 R. R. 413; Leuckhart v. Cooper, 3 B. N. C. 99; Richardson v. Goss, 3 B. & P. 119; 6 R. R. 727. 5 Oppenheim v. Russell, 3 B. & P. 42 ; 6 R. R. 604. Post, p. 62, as to stoppage in transitu. An important example of a general lien is that which a solicitor Chap. II. has for the amount of his bill on papers of his client, except his Solicitor's will, which have come into his possession as solicitor, but lien. not on those which have come into his possession in some other capacity; and the lien is confined to what is due to him in his character of solicitor, and does not extend to general debts.+ The lien "is not the result of contract; it is not an equitable charge; it is not an incumbrance affecting the estate itself. It does not confer on the solicitor any higher right to retain deeds than the client himself has."5 As the lien is only on the interest in the papers that the client has, it cannot continue after the interest of the client has determined, and it may be defeated by some person showing a better right to the deeds, or the property to which they relate, than the client has. Accordingly, if by the judgment in an action the client is ordered to deliver up deeds, his solicitor who holds them cannot withhold possession on account of his lien; and where a client is bound to produce a deed in the possession of his solicitor, the latter must produce it notwithstanding his lien; and a party will be ordered to produce documents which are in the hands of his former solicitor who claims a lien on them.10 papers for "A solicitor cannot embarrass a suit by keeping papers which Order to give belong to an estate which is being administered by the Court, up or produce and cannot use that means of obtaining payment.' Accord- purpose of ingly, a solicitor will be ordered to hand over 232: 1 Dick. 269; Houghton v. Matthews, 3 B. & P. 485; 7 R. R. 815. Balch v. Symes, T. & R. 87; 23 R. R. 195. See, generally, Seton on Decrees, Ch. XL., s. 2 (1). 2 Stevenson v. Blakelock, 1 M. & S. 535; 14 R. R. 525. The lien was extended to articles delivered to the solicitor to be shown to witnesses on a trial Friswell v. King, 15 Sim. 191. 3 Champernown v. Scott, 6 Mad. 93; 22 R. R. 248; Pelly v. Wathen, 1 De G. M. & G. 16; Vaughan v. Vanderstegen, 2 Dr. 409; Gibson v. May, 4 De G. M. & G. 512. Re Galland, 31 Ch. D. 296. Per Chitty, J., Re Llewellin, [1891] 3 Ch. 145. or produce proceedings. Re Llewellin, sup. ; Blunden v. Desart, 2 Dr. & War. 426; 59 R. R. 753; Wakefield v. Newbon, 6 Q. B. 276. 7 Re Union Brick Co., 4 Ch. 627; Ex p. Nesbitt, 2 Sch. & Lef. 279; Blunden v. Desart, sup. 8 Baker v. Henderson, 4 Sim. 27; Bell v. Taylor, 8 Sim. 216; 42 R. R. 162. 9 Furlong v. Howard, 2 Sch. & Lef. 115; Hope v. Liddell, 7 De G. M. & G. 331. 10 Vale v. Oppert, 10 Ch. 340; Lewis v. Powell, [1897] 1 Ch. 678. 11 Per James, L.J., Belaney v. French, 8 Ch. 918, 920; Re Hawkes, [1898] 2 Ch. 1. Chap. II. documents so as to enable the matter to proceed, his lien being preserved.1 London agent. Subject to equities. In respect of what claims. As against whom. The Court has jurisdiction, upon payment being made into Court of, or security given for, a sum sufficient to answer the solicitor's demand, to order, before taxation, delivery up by a solicitor of his client's papers, where the retention of them would embarrass the client in the prosecution or defence of a pending action.2 The London agent of a country solicitor has a lien on the papers of the client received from the country solicitor to the extent only of the debt due to the latter from the client in the particular business, and so long only as the country solicitor remains unpaid. As against the country solicitor the agent's lien is general, but as against the client it is particular.* 5 The lien is subject to all equities affecting the papers at the time when the solicitor received them, and as to costs incurred after that time to any equities arising before the costs are incurred." The lien extends only to the solicitor's taxable costs charges and expenses incurred by him as solicitor for his client; including counsel's fees and all other disbursements which can be moderated by the taxing master, and are not necessarily allowed in full on being vouched; but it does not include ordinary advances or loans.7 It can be asserted only against persons by whom or on whose behalf the solicitor was employed and persons claiming under them. It follows that the solicitor of a mortgagee, whether the mortgage is completed or goes off, has no lien as against the mortgagor," and on the same principle, the mortgagee's solicitor cannot, after the mortgagee has been paid his principal, interest, and costs, assert his lien on the title deeds as against the mortgagor for the mortgagee's costs." And a solicitor acting for mortgagee as well as mortgagor in the preparation of a mortgage 1 Re Hawkes, supra; Boughton v. Boughton, 23 Ch. D. 169; Re Capital Fire, &c. Assoc., 24 Ch. D. 408; Boden v. Hensby, [1892] 1 Ch. 101. 2 Re Galland, 31 Ch. D. 296. 3 Bray v. Hine, 6 Price, 203; 20 R. R. 623; Re Andrew, 7 H. & N. 87. 4 Lawrence v. Fletcher, 12 Ch. D. 858. 16. Pelly v. Wathen, 1 De G. M. & G. 6 Blunden v. Desart, 2 Dr. & War. 405; 59 R. R. 753. 7 Re Taylor, [1891] 1 Ch. 590. 8 Pratt v. Vizard, 5 B. & Ad. 808; Lawson v. Dickenson, 8 Mod. 306. 9 Wakefield v. Newbon, 6 Q. B. 276; Re Llewellin, [1891] 3 Ch. 145. |