freight, for instance, be actually paid; but it seems that 2 Term Rep. a bonâ fide creditor, who pays freight to obtain pos485, Lempriere session of property, has a lien for the amount. v. Pasley. As soon as a specific advantage accrues to the party depositing his deed or goods, a lien is apt to arise as where the jury found that a policy of insurance had been placed with an agent as a security for advances, 2 Dowling & and not merely for safe custody, a general lien was con- v. Muir Fleming. sidered to attach; but, on the contrary, where it clearly appeared that certain deeds were deposited, not as a Mountford v. security for debt, but in order to procure credit at a Turner, 472, future day, the party with whom they were left had no lien given him by such an act. The general rule is, that a banker who discounts bills for his customer, or accepts bills for the accommodation of the customer, has a lien on any negotiable securities belonging to the debtor, until the bills are paid upon which the advances or acceptances have been made. And where a customer lodged bills with his bankers generally, drawing upon them for such money as he wanted in advance, and the banker's custom was to select such bills as came nearest the sum lent, and to discount them, but not with any view of selecting such bills as the basis of the credit, the Court considered that the general lien was not thereby abandoned, and if not that the customer could not have demanded the bills which had not been discounted without paying the general balance; so that the specific security was not relied on by the banker, there being no agreement to waive the lien. Scott. Ryan & Moody, 271, Bolland v. Bygrave. 5 Term Rep. 488, Davis v. Bowsher. In Chancery, the Court will refer it to the master to 1 Buck, 191, ex parte Parr. say what lien exists upon bills in the banker's hands. or Supposing that possession be given up, there are Regaining poscases in which the right revives on the restoration session. regaining of the goods in question. "There can be no "doubt but that a broker may retain a policy for par "ticular premiums which may be unpaid, and that if Cooke's Bankrupt Laws, P. 579, Whitehead v. Vaughan. By Park, J. in "he parts with the possession of it, he has still a lien Levyv.Barnard, 66 2 Moore, 42. on its being redelivered to him." And so it is though he gain possession under pretence of receiving the average. The keeper of some livery stables, finding that his customer had withdrawn the horses he had at keep Ryan & Moody, there, without paying his bill, repossessed himself of 193, Wallace v. Woodgate. them without force, and it was held that his lien revived. It is observable, that in this case there had been an express agreement that the horses should remain till the keep had been satisfied, for in general the rule is, that 1 Strange, 556, if the innkeeper permit the horse to be taken away, the Jones v. Pearle. lien does not revive on its coming there again. So where the defendant, a fuller, had shipped some cloths on board a vessel to be forwarded to the purchaser in London, but hearing of the purchaser's bankruptcy, he endeavoured to stop the goods in transitu; it was held, that his Sweet v. Pym. right of lien did not revive upon this occasion, and the bankrupt's assignees accordingly recovered the property. So it was in the case of the coachmaker, who, having Hartleyv.Hitch completed certain repairs, permitted the owner to take cock; see also it out of his yard and use it; the lien did not revive when the carriage came back again to stand on the premises, there being no agreement for a lien. 1 East, 4, 1 Starkie, 408, 3 Bosanquet & 4 Barnewall & Some iron had been imported by persons who afterwards became bankrupts, and a delivery order was given to the purchasers. The iron was partially delivered, but the defendants, wharfingers, having heard of the bankruptcy, detained the remainder. The payment of the wharfage dues by the merchant importer, according to the usage of trade, took place at Christmas, and the Court clearly considered that there was never any original lien, for the party was entitled to have his goods immediately, the payment in respect of them being postponed till a future day; and they held further, that the failure on the bankrupt's part to discharge these dues created no new right of lien. If a person think proper to decline taking advantage of a privilege which the law allows him, there is, in general, no reason why he should not do so, or, if he act inconsistently with the conceded privilege, he will be up, Waiver. 6 Term Rep. 258, Walker v. deemed to have waived it. And thus a lien may be waived See Montagu either expressly or by inference. As where a deposit on Lien, p. 36. of goods was made with a factor, who promised to pay his principal the net proceeds, the Court were very clear against the right of detaining the goods as claimed by the factor, for the express stipulation for payment in the contract controlled the general rule of law on the subject. Sometimes a waiver of lien will be implied from Birch. the ideas which a person entertains on the business when it is mentioned to him; as where the defendant was asked for some brandy, which he refused to deliver saying it was his own property. Here he might, perhaps, have demanded his lien on the ground of warehouse rent due, but as he was silent concerning that, Lord Ellen- 1 Campbell, borough said he must be taken to have waived his lien, 410, n. Boardif he had one. And upon this, it was contended in a subsequent case, that the lien was waived under these circumstances: the defendant had a lien on some cloth, which he bought of the person who had left it with him after the bankruptcy of that person; when applied to for the goods, he said, "I may as well give up every trans"action of my life:" and these words, it was said, amounted to a waiver; but by Best, C. J., "his busi ness was that of a miller of cloth, and if he had given up his lien in this instance, he might have been called man v. Sill. " on to do so always." And the purchase after the bankruptcy was held to make no difference, the assignees taking subject to such rights as had accrued previously White v. Gainer. to their claim. So if part of a quantity of goods be delivered out to the bailor or his partners, it is no waiver of the lien as to the remainder. 2 Bingham, 23, Holt's Nisi Pri. Dawson. 7 Term Rep. 64, Owenson v. Morse. 3 Brown. Chancery, 21, Van derzee v. Willis, Montagu, p. 39. 2 Campb. 631, Wolf v. Sum mers. 2 Campb. 149. Liens generally, or in favour of particular per sons. Agreements to take security, to give credit, &c. are in general inconsistent with lien. But in the case of a dishonoured bill, if it appear clearly that the party who took it never intended to abide the risk of its being paid, it is not an acceptance of security, and the lien will not be destroyed. A banker took a security for part of his debt, and the debtor died; it was held, that the banker had no lien on the security for the residue of that which was owing to him. And in the cases of credit, and express agreement for payment at a given time, we shall find that the lien will not arise, for the party shows that he means to rely on the personal faith of the debtor, and not upon the property deposited in his hands. And so an innkeeper taking cattle in to keep at a certain weekly sum; a farrier agreeing to cure a horse for so much, and keep him for a reasonable sum until he has been cured; a shipwright giving credit for repairs done to the vessel, have no claim to this right of lien. But a captain has a lien on the luggage of a passenger, for the passage money due at the end of the voyage. 66 To use the words of Lord Ellenborough: "A lien is wholly inconsistent with 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; there can be no lien without an immediate right of action for the debt, and that does not accrue till the period of credit " has expired." 66 Coming now to speak of liens as they may be claimed by particular individuals, or the general usage of trade it may be said, that the person to whom goods are entrusted in the course of his business for any particular purpose, has a lien until he is paid for his work. By general custom, too, if a party be compelled to receive Montagu, p. 23. goods, he has a lien on them for any debts contracted in the execution of the purpose for which he has been C See Montagu, p. 24. Montagu, p 25. 110. ley. obliged to receive them. Thus it is that an innkeeper (7) derives his right of lien, and a common carrier, for both are under a common law duty to exercise their respective vocations. It is said, that the innkeeper's right of detention extends to the very person of his guest. And a farrier has a lien of the nature mentioned above. By special custom, a man may retain for more than the debt contracted in the execution of the purpose for Id. p. 28. which the property was intrusted. And when an usage of the kind has been frequently proved, it will be taken Espinasse, for a settled point. Thus, in the case of wharfingers, 3 Espinasse 81 Lord Kenyon said, "that a lien from usage was matter Spears v. Hart" of evidence. The usage in the present case had "been proved so often (he said,) it should be consi"dered as a settled point that wharfingers had the lien " contended for." But a few instances of detention will not warrant the special custom to retain for a general balance: as where testimony was adduced that four or five carriers had stopped goods till the general balance was paid, the Court held that the lien thus claimed East, 519, was not founded on the common law, and that, although Hadfield. it might exist by virtue of a special agreement, very strong evidence ought to be brought forward to substantiate it. In a subsequent case between the same parties, it was shown that the defendant and other carriers had exercised such a right for ten or twelve years, and one instance of such an usage for thirty years was produced; but the Court considered that the jury had done right 7 East, 224. in negativing the claim of general lien. And a general lien is not favoured by the Courts. (1) An innkeeper's lien is not to be avoided, even if a horse be illegally seized, and brought to his inn, provided he be not cognisant of the improper transaction, for he would then make himself a party to the wrongful act. 3 Starkie, 172, Johnson v. Hill. Rushforth v. |
