acceptor of brought against Branard, and were in the custody of the dafen- lien and the dant on those suits. The advance of the plaintiffs not having the order is been paid, they demanded the glasses of the defendant, which, as the bail not being delivered, this suit was brought. considered ee of the person ad money. Per Cur. Wilde, J. We consider that the general property vancing the in the glasses remained in Branard, and that the plaintiffs only acquired a special property or lien by the advance of money, and the acceptance of the order by Doggett & Co. who were the depositaries of the looking-glasses. To this extent the plaintiffs had a valid title to the possession, which could only be defeated by the payment of the money advanced, or the relinquishment of the possession by the plaintiffs. By the acceptance of the order, the plaintiffs acquired a legal possession. As, between Branard and the plaintiffs, the acceptance amounted to a delivery of the glasses, and ipso facto Doggett & Co. became the bailees of the plaintiffs. 14. INGERSOLL V. VAN BOKELIN, Oct. T. 1827, 7 Cowen's Rep. 670; LANE V. PENNIMAN ET AL. 4 Mass. Rep 92; LEWIS V. HANCOCK, ET AL. 11 Mass. Rep. 72; MILWARD V. HALLETT, 2 Caine's N. Y. Rep. 77; HODGSON V. BUTTS, 3 Cranch U. S. Rep. 140. ing a ship. Per Cur. Sutherland, J. Whoever supplies a ship with ne- For supply cessaries has a treble securitity: 1st. The person of the master: 2d. The specific ship 3d. The personal security of the owner, whether they know of the supply or not. There can be no doubt that the owners and master of a vessel are severally and respectively liable for all necessary supplies and advances furnished for her use on the contract of the master, where there is no special agreement by which the credit is given to either exclusively. 15. Where PARK V. HALL, March T. 1824, 2 Pick. Mass. Rep. 206. Trespass against the defendant as sheriff, for taking by attach- there has ment, wine and vinegar as the property of one Plympton. been a con structive de livery of the Plympton being indebted to the plaintiff assigned the goods in question,among others,to him as security; though the assignment goods. was absolute. Afterwards, and before the attachment, he paid the plaintiff $8,000 and gave security for the residue of the debt, and the plaintiff agreed to deliver up the property, which was done, except the wine and vinegar. The wine was in a VOL. VI. 58 Where Ioft which Plympton had leased to the plaintiff, and he had prom ised to come and give up the lease and key, which he neglected to do. Plympton obtained possession of the loft without the knowledge of the plaintiff. The court, Wilde, J., held, that there was a re-sale to Plympton, and that the plaintiff had no lien on the wine and vinegar, because there was a constructive delivery of all the goods. The general rule is, that a delivery of part of the goods sold on an entire contract is a virtual delivery of the whole. and vests in the vendee the entire property. 16. SLATER V. GAILLARD, Jan. T. 1813, 1 South Carolina Rep. 248. (Tread. Ed.) Barker and Lord, together with one Wilway, chartered a vesthere has sel on a trading voyage from the West Indies to Liverpool; the cargo to be consigned to Slater, a merchant there. Afterwards, Barker & Lord wrote to the plaintiff, informing him of a draft, not noticing, however, the intended assignment. In a second letter they informed him the cargo would probably be consigned to him, of which he would be advised. The plaintiff accepted the bills drawn by Barker & Lord to the amount of £1,600, and £500 drawn by Wilway, which were duly honored. Wilway died on the passage, and the invoice and bills of lading were made out and forwarded to the plaintiff in London. Barker & Lord failed before the vessel arrived, and they assigned the cargo to the defendant. The defendant took possession of the cargo on the vessel's arrival at Charleston, and took new bills of lading to himself as owner, and sent them to the plaintiff with directions to dispose of the cargo for his benefit. Barker & Lord gave the plaintiff notice of the assignment to Gaillard, and directed the proceeds to be paid to him. The charter party was made in October 1799, and in May, 1801, the plaintiff acknowledged the defendant's letter, and promised to follow his directions, but in December following gave him notice that he had disposed of the cargo, and detained the proceeds, subject to his lien, on account of advances to Barker & Lord. The court, Brevard, J. Smith, Colcock, Js. held he had no lien. IV. GENERAL LIENS.* * A general lien may be created by contract: as where a number of bleachers by agreement among themselves, refused to receive goods, except that they should be 1. a general COLLEY V. MERRILL, May T. 1829, 6 Greenleaf's Rep. 50. Held by the court, Weston, J., that a consignee or factor has a A factor has charge on the gross proceeds of the goods, not only for his com- lien. missions, but for all such expenses as a prudent man would have found necessary, in such a case in the discreet management of his affairs. 2. HARTSHORN, ET AL. V. JOHNSON, ET AL. Sept. T. 1823, 2 Halst. Rep. 108. And a com The court held that a common carrier has a lien upon goods mon carrier in his possession, which he is entitled to for the transportation of them, but he has no lien for the transportation of other goods which are not in his possession. A general lien is a right to retain the property of another for a general balance of accounts; but a particular lien is a right to retain it only for a charge, on account of labor employed or expenses bestowed upon the identical property detained. The one is taken strictly, but the other is favored in law. The right rests upon principles of natural equity and commercial necessity, and it prevents circuity of action and gives security and confidence to agents; Kent's Com. vol. 2, p. 634. V. RIGHTS OF PARTY CLAIMING LIEN.* retained for a general balance; Kirkman v. Shawcross, 6 T. R. 14. And the question whether a tradesman has a general or particular lien, is to be decided upon the same ground at law as in equity; Gladstone v. Binley, Mer. 401. And where a contract has been made as to the price of work upon an article, that does not effect the right of a general lien; Chase v. Westmore, 5 M. & S. 180: As where a printer printed numbers of a work which were not consecutive, the court decided he had a lien upon the copies not delivered, for the general ballance of the whole numbers printed; Johnson v. Johnson, 3 M. & S. 267. A general lien may arise where there is a general usage of trade to warrant it. And where it is proved to have frequently existed, the court will not allow the right ro be afterwards disputed; Weldon v. Gould, 3 Esp. 268. Packers, wharfingers, bankers, insurance brokers, and attornies, have, by custom, a general lien; Green v. Farmer, 4 Burr, 2223. And see 2 Kent's Com. p. 636, where it is observed that a general lien for a balance is founded on custom, and is not favored; 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 upon with jealousy, because they encroach on the common law and destroy the equal distribution of the debtor's estate among his creditors. *A lien is a personal right and cannot be assigned; Daubigny v. Duval, 5 T. R. 608. A purchaser for a valuable consideration, without notice, will retain against an equitable lien; Lampreira v, Pasley, 2 T. R. 484. Effect of a lien. 1. HELLMAN V. HELLMAN, Feb. T. 1834, 4 Rawle's Rep. 440; Per Cur. Kennedy, J. A lien upon personal property is said to be neither a jus ad rem nor jus in re, although it gives the party the right of retaining the goods until his demand shall be paid. If this proposition be true in respect of goods, as no doubt it is, its truth as to lands is still more apparent, where it does not even give a right to hold or retain the possession of them. It cannot ex other con tract. 2. BALL V. STANLEY, June T. 1833, 5 Yerger's Rep. 199. tend to an and afterwards bought a debt against Ball. Ball afterwards paid Stanley the money advanced, and demanded the horse, which was refused, unless the amount of the debt purchased was also paid. Held by the court, Green. J., that Stanley could not retain the horse for the latter sum. The licn of the judg ment on the VI. DETERMINATION OF LIEN. 1. JACKSON V. BENEDICT, Oct. T. 1816, 13 Johns. N. Y. Rep. 533. Per Cur. Both parties claim title to the premises in question, under judgments against Gilbert Benedict, in whom the title is lands of the admitted to have been duly vested. The judgment under which lost on tak the lessor of the plaintiff claims was first, docketed, and admiting his body ting that in ordinary cases between judgment creditors, this debtor is in execu tion. would give it priority, yet under the circumstances of this case, it must be postponed, and preference given to the second judgment. On the first judgment which was obtained in this court, a ca. sa, was issued, and the defendant, Gilbert Benedict was arrested and imprisoned thereon. Whilst he was so imprisoned, a fi. fa. was issued on the second judgment, which was obtained in the Onondaga Common Pleas, and the premises in question, levied on and sold, and a deed given by the sheriff to Howell, under whom the defendant claims. Gilbert Benedict having been discharged from imprisonment, under the act relative to the imprisonment of the person, a fi. fa. was taken out on the first judgment, and the premises again sold by the sheriff and purchased by the lessor of the plaintiff. From these facts, it appears that the plaintiff in whose favour the first judgment was obtained, had made his election as to his execution; and having taken the body of the defendant, he could not afterwards have recourse to his property, except in the special cases provided for by the statute, as where the defendant dies in prison, or where he is discharged under the statute as was the case here. But these are contingencies which may never occur, and it would be extremely unjust to continue the lien on the property, after the body has been taken in execution. It would in effect be giving to a ca. sa. an operation upon the land, as well as the body of the defendant. Taking the body in execution is a discharge of the judgment, except where otherwise provided by statute, and an imprisonment of the person must be a suspension of the lien. The defendant in such case would have a right to sell his property, either real or personal; and the execution allowed by the statute, to be taken out after the discharge against his property, cannot claim priority to any lien created, or right acquired by others during the imprisonment of the defendant. 2. THE COMMONWEALTH, FOR THE USE OF, &c. v. STREMBACH, Per Cur. Rogers, J. There is no certain rule how long The limita goods and chattels may with safety to the execution creditor, re- ecution is main in the possession of the debtor. The cases have varied uncertain. from one day to upwards of two years. There is a distinction between a levy upon household furniture, and goods and chattels. 3. DENNY, ET AL. V. WILLARD, Oct. T. 1831, 11 Pick. Mass. Rep. 519. KNAPP v. SPRAGUE, 9 Mass. Rep. 258. the attach The plaintiffs sued on execution against one Holt, and deliv. The lien of ered it to one of the defendant's deputies, who executed it by ment on the attaching the goods and delivering them into the hands of a re- goods is lost ceiptor, who delivered them to the debtor. The court held, that the debtor could make a valid sale of the goods, whether they are bound by the attachment or not, if they are bound by the attachment, the property will pass, subject to the lien. Per Morton, J. The possession of property remaining in, or being restored to the debtor, he could make delivery in fact to any purpose. And had the assignee been a stranger, it cannot be doubted that the transfer would have been valid. debtor's by the re ceiptor de livering them to the debtor. |