* 641 lien *for his costs; one on the funds

recovered, and the other on the papers in his hands. (a) The client cannot get back the papers without paying what is due, (whatever becomes of the suit,) not only in respect of that business for which the papers were used, but for other business done by him in his professional character. (b) The attorney's lien for costs extends to judgments recovered by him; and yet a bona fide settlement or payment by the debtor, before notice of the lien, will prevail against it; and the attorney's lien upon a judgment yields to the debtor's equitable right of set-off. (c) We follow, in New York, the rule of the English court of chancery, and of the court of C. B.; and consider the lien as subject to all the equities that may attach on the fund, and as extending only to the clear balance resulting from the equity between the parties.(d) Dyers have likewise a lien on the goods sent to them to dye, for the balance of a general account. (e) A banker, like an attor, ney, has also a lien on all the paper securities which come to his hands, for the general balance of his account, subject equally to be controlled by special circumstances. (f) The same thing may be said of an insurance broker; and his lien exists upon the policy of insurance, even though the consignor should assign the interest covered by the policy, for the assignee would take, subject to the lien. (g) It exists to cover any balance due upon

ling, 16 Ves. 258. Cowell v. Simpson, ibid. 275. 279. Stevenson v. Blakelock, 1 Maule. & S. 535. 163.

Ex parte Nesbitt, 2 Sch. & Lef.
Dennett v. Cutts, 11 N. H. Rep.

(a) There is a distinction between a lien on papers and one on moneys recovered. The latter lien is only on the moneys recovered in the particular case, and does not extend to any general balance due him for professional services in other cases. Pope v. Armstrong, 3 Smedes & Marshall, 214.

(b) Sir Thomas Plumer, 2 Jac. & Walk. 218. An attorney may, upon reasonable cause and reasonable notice, abandon the conduct of a suit, and still recover his costs for the period during which he was employed. Rowson v. Earle, 1 Mo. & Mal. 538. Vansandau v. Browne, 9 Bing. Rep. 402. Hoby v. Built, 3 B. & Adolph. 350. (c) Vaughan v. Davies, 2 H. Blacks. Rep. 440.

(d) Porter v. Lane, 8 Johns. Rep. 357. Mohawk Bank v. Burrows, 6 Johns. Ch. Rep. 317. This lien, except as to costs, does not extend to the client's money or damages recovered, before the same is in the possession of the attorney. St. John v. Diefendorf, 12 Wendell, 261.

(e) Savill v. Barchard, 4 Esp. Rep. 53.

(f) Davis v. Bowsher, 5 Term Rep. 488. Jourdaine v. Lefevre, 1 Esp. Rep. 66. (g) Godin v. London Assurance Company, 1 Burr. Rep. 489. Whitehead v. Vaughan, Cooke's B. L. 316.

*

general insurance account, though not as to businees foreign to that of insurance. (a) If, however, the insurance broker be employed by an agent of the principal, and with the knowledge that he acted as agent, the broker has no lien upon the policy, for any general balance that may be due to him from the agent. (b) It was also decided by Lord Kenyon, in *642 Naylor v. Mangles, (c) and afterwards recognized as settled law, (d) that a wharfinger had not only a lien on goods deposited at his wharf, for the money due for the wharfage of those particular goods, but that he was also entitled, by the general usage of his trade, to retain them for the general balance of his account due from the owner. (e)

But it would be inconsistent with my general purpose to pursue more minutely the distinctions that abound in this doctrine of lien; and I will conclude with observing, that a lien is, in many cases, like a distress at common law, and gives the party detaining the chattel the right to hold it as a pledge or security for the debt, but not to sell it. It was once said by Popham, Ch. J., in the Hostler's case, (f) that an innkeeper might have the horse of his guest appraised and sold, after he had eaten as much as he was worth. But this was a mere extra-judicial dictum, and it was contrary to the law, as it had been previously, and as it had been subsequently adjudged. (g) The right to sell in such a case is allowed by the custom of London, but not by the general custom of the realm. I presume that satisfaction of a lien may be enforced by a bill in chancery; and a factor, having a power to sell, has the means

(a) Story on Agency, sec. 379.

M'Kenzie v. Nevius, 22 Maine Rep. 138.

(b) Maanss v. Henderson, 1 East's Rep. 335.

(c) 1 Esp. N. P. Rep. 109.

(d) Spears v. Hartly, 3 Esp. N. P. Rep. 81. Heath and Chambre, J., in Richardson v. Goss, 3 Bos. & Pull. 119.

(e) The wharfinger has equally a lien on a vessel for wharfage. Johnson v. The M'Donough, Gilpin. 101.

(f) Yelv. Rep. 66.

(g) Waldbrooke ». Griffin, 2 Rol. Abr. 85, A. pl. 5. Moore's Rep. 876. Jones v. Pearle, 1 Str. Rep. 556. Pothonier v. Dawson, 1 Holt's N. P. Rep. 383.

'Innkeeper has no right to sell his guest's horse for his keeping. His remedy is by action in nature of a bill in chancery. Fox v. McGregor, 11 Barb. R. 41.

of payment within his control; and a right to sell, may, in special cases, be implied from the contract between the parties, as where the goods are deposited to secure a loan of money, (a) or where a factor makes advances or incurs liabilities on account of the consigment. (b) It would be very convenient to allow

(a) Pothonier v. Dawson, 1 Holt's N. P. Rep. 383. (b) Brown v. M'Gran, 14 Peters, 479.

1 Since the publication of the Commentaries, the factor's right to sell the goods of his principal has undergone considerable discussion.

In general, a factor has a right to sell at such time, and for such prices, as in the exercise of a sound discretion he may think best for his employer.

If the factor, without making advances, receive the goods subject to instructions, he is bound to obey them. Concerning these propositions, the authorities are agreed. Smart v. Sandars, 5 M. G. & S. R. 895. Brown v. McGran, 14 Pet. R. 479, 495. Marfield . Goodhue, 3 Comst. R. 62. Further than this, it is not easy to reconcile them.

1. In England, it is held, that a factor, to whom goods had been consigned, generally for sale, and who has subsequently made advances on the credit of the goods, has no right to sell them contrary to the orders of his principal, even though the latter, on request, refuse to refund the advances, and it be admitted that the sale was a sound exercise of discretion. Smart v. Sandars, supra, S. P.

Yet, in this case, the court exhibited a decided inclination to recognize an alleged general custom among factors, to sell upon default of the principal, p. 919.

2. In New York, and perhaps in the states generally, the doctrine maintained is, that a factor who has received goods for sale, whether with or without instructions, and has made advances upon them, may, in good faith, though contrary to the instructions of his principal, sell so many of them as are requisite to cover his advances, if the principal, upon reasonable demand, refuse to refund such advances. Blôt v. Boiceau, 1 Sandf. Sup. C. R. 111. S. C. on Appeal, 3 Comst. R. 78. Frothingham v. Everton, 12 N. Hamp. R. 239. Parker v. Brancker, 22 Pick. 40. Marfield v. Goodhue, 3 Comst. R. 62.

3. The Supreme Court of the U. S. has held a still different doctrine in the case of Brown v. McGran, 14 Pet. 479, 495. Mr. Justice Story, in delivering the opinion of the court, declared the law to be, that "the consignor has no right, by any orders given, after advances made or liabilities incurred, to suspend or control the factor's right of sale, except as to the surplus of the consignment, beyond such advances or liabilities." See also Story on Agency, § 74, and note.

The factor who has made advances on goods consigned, may maintain an action before sale, (Upham v. Lefavour, 11 Met. R. 174,) after waiting a reasonable time for sale, in due course of business. Frothingham v. Everton, 12 N. Hamp. R. 239. However, there is a dictum, per Woodworth, J., in 6 Cow. R. 184, that no resort can be had to the principal, until a failure of the consignment.

The measure of damages in actions against factors for selling in violation of duty, is the amount of injury which the principal has actually sustained, in consequence of such sale. In general, it may be the difference between the price obtained for the goods, and the highest price at which they might have been sold. Marfield v. Douglass, 1 Sandf. Sup. C. R. 360. Blôt v. Boiceau, 3 Comst. 78. Nelson v. Morgan, 2 Martin's La. R. 257. But much will depend upon the time and the circumstances under which the sale took place. Frothingham v. Everton, 12 N. Hamp. R. 239. Ainsworth v. Partillo, 13 Ala. R. 460. Austill v. Crawford, 7 id. 335. Sedgwick on Dam. 264, 365, 366. Wilson v. Little, 2 Comst. R. 443.

an innkeeper to sell the chattel without suit, in like manner as a pawnee may do, in a case of palpable default, and on reasonable notice to redeem; for the expense of a suit in equity by an innkeeper, would, in most instances, more than exhaust the value of the pledge. (a)

IV. Of the termination of agency.

* 643

The authority of the agent may terminate in various ways. It may terminate with the death of the agent; by the limitation of the power to a particular period of time; by the execution of the business which the agent was constituted to perform; by a change in the state or condition of the principal; by his express revocation of the power; and by his death.

1. The agent's trust is not transferable, either by the act of the party or by operation of law. It terminates by his death; and this results, of course, from the personal nature of the trust. (b) According to the civil law, if the agent had entered upon the execution of the trust in his lifetime, and left it partially executed, but incomplete at his death, his legal representatives would be bound to go on and complete it. (c) Pothier adopts this principle as just and reasonable; and there can be no doubt that the principal will be bound to complete a contract, partly performed by him by the act of his agent, by a suit at law or in equity, according to the nature of the case; but the representatives of the agent will have nothing to do with it, unless the business be in such a situation that it cannot be performed without their intervention. The cases stated in the civil law, and by Pothier, were between the principal and the agent, and not between a third person and the representatives of the agent dealing in the character of agent. Nor can authority given for private purposes to two persons, be executed by the

(a) In Pennsylvania, by statute, in 1807, innkeepers have a lien on horses delivered to them to be kept in their stables, for the expense of the keeping; and if the expense amounts to $30, and is not paid in fifteen days after demand, the innkeeper may cause the horse or horses to be sold at public sale for his indemnity. Purdon's Dig. 506.

(b) Dig. 17, 1, 27, 3. Pothier, Traité du Contrat de Mandat, No. 101. (c) Dig. 17, 1, 14, and 17, 2, 40.

survivor, unless it be so expressly provided, or it be an authority coupled with an interest. (a)

2. A power of attorney, or every naked authority is, in general, from the nature of it, revocable at the pleasure of the party

who gave it. (b) But where it constitutes part of a se'644 curity for money, or is necessary to give effect to such

security, or where it is given for a valuable consideration, it is not revocable by the party himself, though it is necessarily revoked by his death. (c) In the case of a lawful revocation of the power by the act of the principal, it is requisite that notice be given to the attorney; and all acts bona fide done by him under the power, prior to the notice of the revocation, are binding upon the principal. (d) This rule is necessary to prevent imposition, and for the safety of the party dealing with the

(a) Pothier, Traité du Contrat de Mandat, Nos. 101, 102. Co. Litt. 112 b. 181 b. Mr. Justice Story (Com on Bailments, § 202) suggests that the power or mandate might survive as against a surviving partner, where a partnership house was the mandatary.

(b) Vinior's case, 8 Co. 81 b.

(c) Walsh v. Whitcomb, 2 Esp. Rep. 565. Lord Eldon, in Bromley v. Holland, 7 Ves. 28. Hunt v. Rousmanier, 8 Wheaton, 174. Gaussen v. Morton, 10 Barn. & Cress. 731. Story on Agency, § 209. Ibid. on Bailments, § 477.

(d) Pothier, Traité des Oblig. No. 80. Buller, J., in Salte v. Field, 5 Term Rep. 211. Bowerbank v. Morris, Wallace's Rep. 126. Spencer & White v. Wilson, 4 Munf. Rep. 130. Mellen, Ch. J., in Harper v. Little, 2 Greenleaf's Rep. 14. Code of Louisiana, art. 2996, 2997. Hotchkiss's Code of Georgia, p. 404. Beard v. Kirk, 11 N. H. Rep. 397. United States v. Jarvis, District Court of Maine, Feb. 1846, N. Y. Legal Observer, (iv. 298,) for August, 1846. In this last case the defendant was appointed navy agent, to hold his office during pleasure, for a term not exceeding four years, and he was removed without cause and without previous notice, six months before the expiration of the four years, and was sued on his bond for a balance of accounts. He had hired an office and a clerk, and was responsible for the accruing rent on the unexpired quarter, and for the clerk's salary for an unexpired term. It was held that the defendant was entitled, by way of set-off, for the rent and the clerk's hire accruing after his removal, and for which he had become responsible. It was declared as a sound and settled principle in respect to agency, that though it was revocable, or might be renounced at pleasure, yet if revoked without just cause and without reasonable notice, by either party, the principal would be responsible for the loss resulting from contracts bona fide made and entered into in the necessary execution of the trust, before notice, for nemo potest mutare consilium suum in alterius injuriam, and this principle of justice and policy applied equally between the government and an individual, and between private individuals. This doctrine, so just and true, was illustrated with learning and ability by Mr. Justice Ware, the district judge.