LIEN. The word lien signifies the right of a person in pos session of property belonging to another to detain such property until some debt or demand in connection with the property de tained is satisfied. This right of lien arises either by implication of law or by express contract. Where, however, an express con tract for security is made between parties such agreement ex cludes, to the extent of the express contract, any lien upon prop erty to which it might otherwise have been subject. The posses sory right conferred by lien is not a right ad rem, that is to say it does not convey to the person in possession of goods any prop erty in them, it merely gives him a legal right to retain them until his demand is satisfied. Consequently, apart from statute or legal process authorizing him so to do, he is not entitled to sell the goods to recover what is due to him.
If the goods be not in possession of the claimant of lien, as in the case of the furniture of a tenant owing rent to a landlord, the law will indeed assist the landlord to seize the property and en able him to sell it in due course in order to pay himself out of the proceeds, but it will not give him any property in the furni ture itself.
There are two descriptions of lien recognized by the English law : particular and general. Particular liens exist where persons have a right to retain possession of property in respect of labour or money expended by them on the identical chattel which con stitutes the res gestae or subject matter of the dispute. Liens of this description are usually favourably regarded_ by the court. General liens are claims made in respect of a general balance of account between the parties.
Liens are created in three ways, either (I) by express contract, (2) by usage of trade, or (3) by some legal relation between the parties, where there is no express contract, nor any usage of trade. The term legal relation applies either to those persons on whom the law throws an obligation to perform certain services whenever required so to do by any member of the public, such as an inn-keeper or a common carrier, or else to a person who use fully expends time, work or money on the reparation of the chattel of another, such as a jobbing tailor, a boot repairer, a furrier, a calico printer, or indeed any person to whom goods are delivered in order to have some service performed in connection with them for which such delivery is necessary. But the mere safeguard ing of the article, apart from work done upon it, will convey no right to lien in this particular form of deposit.
Again, a ship-master (on behalf of the owner) has a lien upon cargo for freight; and if, upon landing, notice of such lien is given to the wharfinger or warehouseman, the cargo is bound thereby in his hands, and may be subsequently sold by him upon compliance with statutory conditions (Merchant Shipping Act, 1894, secs. And a like rule applies to passengers' lug gage (except wearing apparel actually in use) for unpaid passage money.
A claim to general lien, though, as already stated, not regarded with favour by the courts, may be established by special or neces sarily implied agreement, or by the custom of a certain trade. By virtue of accepted custom of trade or profession, wharfingers, bankers, insurance brokers and solicitors have a lien upon the property of their employers, not only for debts arising out of the particular transaction for which the property was delivered to them, but also for a general balance of account between the parties, and this rule has been held to apply to statute barred debts (Courtenay v. Williams, 3 Hare at p. 552).
A similar principle as to general balance of account has been held applicable to the lien of calico printers and packers, and locally (by the custom of Exeter) to fullers. The right to general lien is, however, incapable of transference.
Maritime Lien differs from all other forms of lien in that it neither includes nor requires actual physical possession of the ship in respect of which a maritime lien arises. It presupposes the giving of a credit coupled with a postponement intentionally made of the right to enforce it. It follows as a necessary conse quence that unless the creditor has forfeited the right because of his own laches he can take legal proceedings against the ship notwithstanding any change there may have been in the ownership, and he has priority over all other titles to the ship which are not based on superior or equal liens, including mort gages already existing. It is otherwise with an existing possessory lien of a ship repairer. (Carver's Carriage by Sea, 55. 320, 692.) The principal instances in which the law recognizes maritime liens are bottomry (q.v.) (i.e., mortgage of ship's keel), salvage wages, master's wages, disbursements, liabilities, damage from col lision, in which case the lien attaches to the wrong-doing ship.