Page:EB1911 - Volume 16.djvu/615

Rh law—in this respect a legacy of the feudal system—a landlord has a lien over his tenant’s furniture and effects for rent due, which can be enforced without the assistance of the law simply by the landlord taking possession, personally or by his agent, and selling enough to satisfy his claim; whereas the maritime lien is more distinctly the product of the civil law, and is only found and used in admiralty proceedings, the high court of admiralty having been founded upon the civil law, and still (except so far as restrained by the common-law courts prior to the amalgamation and co-ordination of the various courts by the Judicature Acts, and as affected by statute law) acting upon it. The peculiar effects of this maritime lien are discussed below. There is also a class of liens, usually called equitable liens (e.g. that of an unpaid vendor of real property over the property sold), which are akin to the nature of the civil law rather than of the common law. The word lien does not frequently occur in statute law, but it is found in the extension of the common-law “carriers’ or shipowners’ lien” in the Merchant Shipping Act 1894; in the definition, extension and limitation of the vendor’s lien; in the Factors Act 1877, and the Sale of Goods Act 1893; in granting a maritime lien to a shipmaster for his wages and disbursements, and in regulating that of the seamen in the Merchant Shipping Act 1894; and in the equity jurisdiction of the county courts 1888.

Common-Law Liens.—These may be either particular, i.e. a right over one or more specified articles for a particular debt, or general, i.e. for all debts owing to the creditor by the debtor.

The requisites for a particular lien are, firstly, that the creditor should be in possession of the article; secondly, that the debt should be incurred with reference to the article; and thirdly, that the amount of the debt should be certain. It may be created by express contract, by implied contract (such as the usage of a particular trade or business), or as a consequence of the legal relation existing between the parties. As an example of the first, a shipowner at common law has a lien on the cargo for the freight; but though the shipper agrees to pay dead freight in addition, i.e. to pay freight on any space in the ship which he fails to occupy with his cargo, the shipowner has no lien on the cargo for such dead freight except by express agreement. The most usual form of the second is that which is termed a possessory lien—the right a ship-repairer has to retain a ship in his yard till he is paid for the repairs executed upon her, and the right a cobbler has to retain a pair of shoes till he is paid for the repairs done to them. But this lien is only in respect of the work done on, and consequent benefit received by, the subject of the lien. Hence an agistor of cattle has no lien at common law upon them for the value of the pasturage consumed, though he may have one by agreement; nor a conveyancer upon deeds which he has not drawn, but which are in his possession for reference. The most common example of the third is that of a carrier, who is bound by law to carry for all persons, and has, therefore, a lien for the price of the carriage on the goods carried. It has been held that even if the goods are stolen, and entrusted to the carrier by the thief, the carrier can hold them for the price of the carriage against the rightful owner. Of the same nature is the common-law lien of an innkeeper on the baggage of his customer for the amount of his account, he being under a legal obligation to entertain travellers generally. Another instance of the same class is where a person has obtained possession of certain things over which he claims to hold a lien in the exercise of a legal right. For example, when a lord of a manor has seized cattle as estrays, he has a lien upon them for the expense of their keep as against the real owner; but the holder’s claim must be specific, otherwise a general tender of compensation releases the lien.

A general lien is a right of a creditor to retain property, not merely for charges relating to it specifically, but for debts due on a general account. This not being a common-law right, is viewed by the English courts with the greatest jealousy, and to be enforced must be strictly proved. This can be done by proof either of an express or implied contract or of a general usage of trade. The first of these is established by the ordinary methods or by previous dealings between the parties on such terms; the second is recognized in certain businesses; it would probably be exceedingly difficult, if not impossible, to extend it at the present time to any other trades. When, however, a lien by general usage has once been judicially established, it becomes part of the Law Merchant, and the courts are bound to recognize and enforce it. The best known and most important instance is the right of a solicitor to retain papers in his hands belonging to his client until his account is settled. The solicitor’s lien, though probably more commonly enforced than any other, is of no great antiquity in English law, the earliest reported case of it being in the reign of James II.; but it is now of a twofold nature. In the first place there is the retaining lien. This is similar in kind to other possessory liens, but of a general nature attaching to all papers of the client, and even to his money, up to the amount of the solicitor’s bill, in the hands of the solicitor in the ordinary course of business. There are certain exceptions which seem to have crept in for the same reason as the solicitor’s lien itself, i.e. general convenience of litigation; such exceptions are the will of the client after his decease, and proceedings in bankruptcy. In this latter case the actual possessory lien is given up, the solicitor’s interests and priorities being protected by the courts, and it may be said that the giving up the papers is really only a means of enforcing the lien they give in the bankruptcy proceedings. In the second place there is what is called a charging lien—more correctly classed under the head of equitable lien, since it does not require possession, but is a lien the solicitor holds over property recovered or preserved for his client. He had the lien on an order by the court upon a fund in court by the common law, but as to property generally it was only given by 23 & 24 Vict. c. 127, § 28; and it has been held to attach to property recovered in a probate action (ex parte Tweed, C.A. 1899, 2 Q.B. 167). A banker’s lien is the right of a banker to retain securities belonging to his customer for money due on a general balance. Other general liens, judicially established, are those of wharfingers, brokers and factors (which are in their nature akin to those of solicitors and bankers), and of calico printers, packers of goods, fullers (at all events at Exeter), dyers and millers; but in all these special trades it is probable that the true reason is that the account due was for one continuous transaction. The calico would come to be printed, the goods to be packed, the cloth to be bleached, the silk to be dyed, and the corn to be ground, in separate parcels, and at different times, but all as one undertaking; and they are therefore, though spoken of as instances of general lien, only adaptations by the courts of the doctrine of particular lien to special peculiarities of business. In none of these cases would the lien exist, in the absence of special agreement, for other matters of account, such as money lent or goods sold.

Equitable Liens.—“Where equity has jurisdiction to enforce rights and obligations growing out of an executory contract,” e.g. in a suit for specific performance, “this equitable theory of remedies cannot be carried out unless the notion is admitted that the contract creates some right or interest in or over specific property, which the decree of the court can lay hold of, and by means of which the equitable relief can be made efficient. The doctrine of equitable liens supplies this necessary element; and it was introduced for the sole purpose of furnishing a ground for these specific remedies which equity confers, operating upon particular identified property instead of the general pecuniary recoveries granted by courts of common law. It follows, therefore, that in a large class of executory contracts express and implied, which the common law regards as creating no property, right nor interest analogous to property, but only a mere personal right to obligation, equity recognizes in addition to the personal obligation a particular right over the thing with which the contract deals, which it calls a lien, and which though not property is analogous to property, and by means of which the plaintiff is enabled to follow the identical thing and to enforce the defendant’s obligation by a remedy which operates directly on the thing.