Lien

Right of Sale or Transference of Lien.

Apart from statute a mere lien confers no right of sale on the party entitled to retain the chattels against the true owner, even if the detention be at tended with trouble and expense (Thames Iron Company v. Pat ent Derrick Company, 186o, 29 L.J., Ch. 714). A statutory right of sale, however, of any goods left by a guest in his custody enures, after six weeks, to an innkeeper for the amount of his bill, by virtue of the Innkeepers Act, 1878 (sec. I). By the Mer chant Shipping Act, 1894 (secs. 497-498), a wharfinger or ware houseman, at the expiration of 90 days from the time when goods are placed in his custody (or a shorter time if the goods be per ishable) is entitled to sell them by public auction; and sec. 97 of the Railway Clauses Act, 1845, authorizes railway companies to detain and sell any goods delivered to them for carriage upon default of payment of their tolls. Neither the custody of the chattel nor the accompanying lien is capable of legal transfer ence to a third party, who is consequently, after demand and re fusal, liable in trover to the true owner o. the goods.

The lien of an unpaid vendor for the price of the article which he has sold to an insolvent purchaser subsists until the chattel has either been actually or constructively delivered into the hands of the latter. This lien for the price of specific goods is not determined by the mere delivery of the chattels to a carrier for the purpose of conveyance. Consequently, if the vendor can arrest the goods at any stage of the transit before they reach the hands of the purchaser or his agent the vendor reverts to the same position as if he had not parted with the possession of the goods.

The right is not de-vested by the purchaser endorsing over a bill of lading of the goods by way of security or for valuable consideration to a third party, with notice of the consignee's in solvency, or by a purchaser's sub-sale of the goods before the termination of the transitus, without delivery of the documents of title to an innocent third party.

Waiver and Determination of Lien.—A lien may be waived, and the right to assert the claim lost, by conduct on the part of the holder of the goods obviously inconsistent with the existence of such a right. A lien is determined by actual payment or tender of the full amount of the legal claim for which the goods are detained, but part payment of such demand is not sufficient, neither is a general tender or offer to discharge the claim without actual tender or what, in point of law, is equivalent thereto.

(W. W. P.) U.S. Differences.—In the United States, speaking gener ally, the law relating to liens is that of England, but there are some considerable differences occasioned by three principal causes. (I) Some of the Southern States, notably Louisiana, have never adopted the common law of England. When that State became one of the United States of North America it had (and still preserves) its own system of law. In this respect the

law is practically identical with the Code Napoleon, which, again speaking generally, substitutes privileges for liens, i.e., gives cer tain claims a prior right to others against particular property. These privileges being strictissimae interpretations, cannot be extended by any principle analogous to the English doctrine of equitable liens. (2) Probably in consequence of the United States and the several States composing it having had a more democratic government than Great Britain, in their earlier years at all events, certain liens have been created by statute in several States in the interest of the working classes which have no parallel in Great Britain, e.g., in some States workmen employed in building a house or a ship have a lien upon the building or structure itself for their unpaid wages. This statutory lien par takes rather of the nature of an equitable than of a common-law lien, as the property is not in the possession of the workman, and it may be doubted whether the right thus conferred is more beneficial to the workman than the priority his wages have in bankruptcy proceedings in England. Some of the States have also practically extended the maritime lien to matters over which it was never contended for in England. (3) By the constitution of the United States the Admiralty and inter-State jurisdiction is vested in the Federal as distinguished from the State courts, and these Federal courts have not been liable to have their jurisdic tion curtailed by prohibition from courts of common law, as the court of Admiralty had in England up to the time of the Judi cature Acts; consequently the maritime lien in the United States extends further than it does in England, even after recent en largements ; it covers claims for necessaries and by material men, as well as collision, salvage, wages, bottomry and damage to cargo.

Difficulties connected with lien occasionally arise in the Fed eral courts in Admiralty cases, from a conflict on the subject between the municipal law of the State where the court happens to sit and the Admiralty law; but as there is no power to prohibit the Federal court, its view of the Admiralty law based on the civil law prevails. More serious difficulties arise where a Federal court has to try inter-State questions, where the two States have different laws on the subject of lien ; one for example, like Louisiana, following the civil law, and the other the common law and equitable practice of Great Britain. The question as to which law is to govern in such a case can hardly be said to be decided. "The question whether equitable liens can exist to be enforced in Louisiana by the Federal courts, notwithstanding its restrictive law of privileges, is still an open one" (Derris, Con tracts of Pledge, 517; and see Burdon Sugar Refining Co. iv. Payne, 167 U.S. 127).