mand a reasonable charge for keeping them; and, independent of that provision, there is no lien upon goods found.1

A general lien for a balance of accounts 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 at with jealousy, because they encroach upon the common law, and destroy the equal distribution of the debtor's estate among his creditors. (a) But by the custom of the trade, an agent may have a lien upon the property of his employer, in- *637 trusted 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 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 of it. (b) This general lien may also be created by express agreement; as, where one or more persons gives 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 Kirkman v. Shawcross; (c) but the judges in that case declared, that the notice would not avail in the case of persons who, like common carriers and innkeepers, 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 to refuse to serve them. The same in

(a) Rushforth v. Hadfield, 6 East's Rep. 519. S. C. 7 East's Rep. 224. Bleaden v. Hancock, 4 Carr. & Payne's Rep. 152. (b) Rooke, J., 3 Bos. & Pull. 50.

(c) 6 Term Rep. 14.

1 If a certain reward be offered for the recovery of a lost article, the finder has a lien for the reward. Wentworth v. Day, 3 Met. 352. But not if the reward offered be indefinite. Wilson v. Guyton, 8 Gill, 213. See however Baker v. Hoag, 7 Barb. 113, where this limitation of the doctrine of Wentworth v. Day, is not allowed.

timation, that a common carrier could not create any general lien as against the person who employed him, by means of notice, was given by the judges in Oppenheim v. Russell; (a) but a contrary doctrine was strongly implied in the subsequent case of Rushforth v. Hadfield; (b) and the court in that case, while they condemned the injustice and impolicy 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, (c) whether such a general lien could exist as between the owner of the goods and the carrier, and the claim was intimated to be unjust. It must, therefore, be considered a point still remaining to be settled by judicial decision.

638

Possession, actual or constructive of the goods, is necessary to create the lien; and the right does not extend to debts which accrued before the character of factor commenced; (d) 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. (e)1 And though there is possession, a lien cannot be acquired where the party came to that possession wrongfully. (f) 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 he relies, in the one case, on the personal credit of his

(a) 3 Bos. & Pull. 42.

(c) 5 Barn. & Ald. 350.

(b) 7 East's Rep. 224.

(d) Houghton v. Matthews, 3 Bos. & Pull. 485.

(e) Kinloch v. Craig, 3 Term Rep. 119, 783.

(f) Lempriere v. Pasley, 2 Term Rep. 485. Madden v. Kempster, 1 Campb. N. P. Rep. 12. Story on Agency, § 361.

1 Whether the possession by the factor of a bill of lading duly indorsed, will give him the right to take and keep the goods represented by the bill, has been made a question. See Russell on Factors, 202. Patten v. Thompson, 5 Maule & S. 350. Rice v. Austin, 17 Mass. R. 197.

employer; 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 Gilman v. Brown, (a) in respect to the vendor's right of lien as against the vendee, and the principle equally applies to other cases; and it was also explicitly declared by Lord Eldon, in Cowell v. Simpson. (b) The lien is destroyed when a factor makes an express stipulation on receiving the goods, to pay over the proceeds. (c) 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. (d) 1

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1

639

Possession is not only essential to the creation, but also to the continuance of the lien; and when the party voluntarily parts with the possession of the property upon which the lien has attached, he is divested 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. (e) But if the assignment or delivery to a third person be merely for the benefit of the factor,

(a) 1 Mason's Rep. 191.

(b) 16 Ves. 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 Yelv. Rep. 67 a, shows, by cases as ancient as the Year Books, 5 Edw. IV. 2, 20, and 17 Edw. IV. 1, that the lien is extinguished by a postponement of credit to a future day.

(c) Walker v. Birch, 6 Term Rep. 258.

(d) Daubigny v. Duval, 5 Term Rep. 604. Hiscox v. Greenwood, 4 Esp. Rep. 174. M'Combie v. Davies, 7 East's Rep. 5. The lien was held to continue under an agreement that it should continue until payment, though the boards on which the lien attached were removed to ground procured for that purpose by the owner. Wheeler v. M'Marland, 10 Wendell's Rep. 318.

(e) Jones v. Pearle, Str. Rep. 556. Sweet v. Pym, 1 East's Rep. 4.

1 It is held that the simple refusal by the bailee to give up goods, without alleging the lien as a reason, is a waiver of the lien. Dorrs v. Morewood, 10 Barb. 183. Hanna v. Phelps, 7 Ind. 21. In Lambard v. Pike, 33 Me. 141, it was held that, if a claim for labor and materials secured by a lien be joined, in taking out judgment, with other claims not so secured, the lien is waived. A statutory lien may be destroyed by the repeal of the statute, while proceedings under it are pending, without impairing the obligation of the contract, the lien being only a part of the remedy. Bangor v. Goding, 35 Me. 73.

or by way of pledge or security to the extent of the factor's lien, and with notice of the lien, it is in effect a continuance of the factor's possession, and the lien is retained. (a) Nor is it universally true, that the actual delivery of part of the goods sold on an entire contract, is equivalent to the actual delivery of the whole. It will depend upon the terms of the contract, and the intention of the parties; and whenever the prop*640 erty in the part of the goods not delivered does not *pass

to the vendee, the vendor's right of lien for the whole price is of course preserved on the part retained. (b)

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, (c) but he has a general lien for the balance of his

(a) M'Combie v. Davies, 7 East's Rep. 5. Urquhart v. M'Iver, 4 Johns. Rep. 103. Ganseford v. Dutillet, 13 Martin's Louis. Rep. 284. Nash v. Mosher, 19 Wendell,

431.

(b) Blake v. Nicholson, 3 Maule & Selw. 167. Wilde, J., in Parks v. Hall, 2 Pick. Rep. 213. The rule is the same where a warehouseman delivers from time to time portions of the goods stored in his warehouse, without the storage being paid. He has a lien upon the portion left for the storage of the whole. Schmidt v. Blood, 9 Wendell's Rep. 268.

(c) A consignee or factor has a charge on the goods and on the gross proceeds of the goods, not only for his commissions, but for all such expenses as a prudent man would have found necessary, in such a case, in the discreet management of his own affairs. Colley v. Merrill, 6 Greenleaf's Rep. 50. He may sell the goods according to the general usage, and reimburse himself for his advances and liabilities. Brander v. Phillips, 16 Peters's Rep. 129. We understand the true doctrine to be, says Mr. Justice Story, (Story on Agency, § 74, n.) that when an assignment is made to a factor for sale, the consignor has a right generally to control the sale thereof, according to his own pleasure, from time to time, if no advances have been made or responsibilities incurred on account thereof, and the factor is bound to obey his order. But if the factor makes advances or incurs responsibilities on account of the assignment by which he acquires a special property therein, he has a right to sell so much of the consignor's property as may be necessary to reimburse such advances, or meet such liabilities, if there be no agreement which affects the right. Brown v. M'Gran, 14 Peters, 479. Parker v. Brancker, 22 Pick. 40, S. P.1

The consignor, before the goods have reached the factor, may transfer the title to a third person, though the consignor be indebted to the factor for advances on previous consignments. Bank of Rochester v. Jones, 4 Comst. R. 497. A factor, who accepts a bill drawn on goods, placed in the hands of a third person to be delivered to him, acquires a property in the goods against an attaching creditor. Nesmith v. Dyeing Co. 1 Curtis R. 130. His lien extends to goods only, which come to his hands as factor. Dixon v. Stansfeld, 11 Eng. L. & Eq. 528. Elliot v. Bradley, 28 Vt. R. 217.

general account, arising in the course of dealings between him and his principal; and this lien extends to all the goods of the principal in his hands in the character of factor. (a) 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. (b) 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. (c)

Attorneys and solicitors, as well as factors, have a general lien upon the papers of their clients in their possession, for the balance of their professional accounts; but the lien is liable to be waived or divested, as to papers received under a special agreement or trust, where they take security from their clients. (d) The solicitor or attorney has two kinds of

(a) Kruger v. Wilcox, Amb. Rep. 252. Lord Mansfield, in Godin v. London Ass. Co. 1 Burr. Rep. 494. Lord Kenyon in 6 Term Rep. 262. Chambre, J., 3 Bos. & Pull. 489. Knapp v. Alvord, 10 Paige, 205. In Barnett v. Brandão, 6 Manning & Granger, 630, the bankers' lien was well discussed, and it was adjudged that bankers have a general lien on the securities of their customers, which come to their possession as bankers, in the way of their business, for their general balance. Exchequer bills pass by delivery to the bona fide holder for value; and should they and ordinary bills and notes payable to bearer be placed in the hands of a banker to be collected, if the banker is a creditor on a general balance, and bona fide receives the paper as the property of the customer, he is entitled to his lien, unless there be some agreement, express or implied, affecting the right of lien. In Louisiana, a factor or commission merchant has no lien over an attaching creditor for a general balance of account; his lien is confined to specific advances on consignments. Gray v. Bledsoe, 13 Louis. Rep. 489. Whenever the relation of principal and factor exists, the right of lien attaches to secure all advances made or liabilities incurred in the course of his business by the factor, and the doctrine of lien may be enforced, as well by a purchasing as by a selling factor. Bryce v. Brooks, 26 Wendell, 367.

(b) Brander v. Phillips, 16 Peters's Rep. 129.

(c) Drinkwater v. Goodwin, Cowp. Rep. 251. Chambre, J., 3 Bos. & Pull. 489. Hudson v. Granger, 5 Barn. & Ald. 27. Where a factor indorses bills for his principal, his liability, with a reasonable apprehension of danger, gives him a lien on other bills in his hands belonging to his principal, to meet the event of his indorsement. Hodgson v. Payson, 3 Harr. & Johns. Rep. 339. But a factor who remits a bill to his principal in payment of goods sold on his account, and indorses the bill, does not become personally responsible, if he receives no consideration for guarantying, and does not expressly undertake to do so. Sharp v. Emmet, 5 Wharton, 288. The modern cases have relaxed the severity of the old rule.

(d) Lord Mansfield, Doug, Rep. 104. Montagu on Lien, 32, 59. Ex parte Ster