LIEN has been defined, in its most limited signification, as a right of detaining the property of another until some demand is satisfied. It is the right, for example, of a creditor who is in possession of property belonging to his debtor, under certain circumstances, to hold it until his debt is paid. Or, as Lord Ellenborough has said, it is right in one man to retain that which is in his possession belonging to another, till certain demands of him, the person in possession, are satisfied." Three kinds of liens may be dis tinguished—general, particular, and maritime; but to these may be added a fourth, namely, equitable lien. A general lien consists of a right to retain possession of a particular property in respect of monies due on a general balance of account ; but in a particular lien the right of re tention is restricted to the property in respect of which the indebtedness has accrued, and is limited in extent to that same indebtedness. An equitable lien is one which has been created by equitable doctrine, and is particularly distinguished from and is an exception to the main principle of the other three classes of lien, by reason of the fact that the person entitled to the benefit of the lien has no actual possession of the property itself. In the case of legal liens, as distinguished from equitable liens, the pos session of the property affected is in general an essential factor in their validity. A lien is only possible in respect of certain and liquidated demands, and not of those in the nature of unascertained damages which can only be assessed by a jury, unless, indeed, a special contract exists. The debt or demand for which the lien is asserted must be due to the person claiming it in his own right, and not merely as the agent of a third person. It must also, in the absence of a special agreement, be a debt or demand due from the person for whose benefit the party is acting, and not from a third person, although the goods may be claimed through him. A lien is always a personal right, and cannot therefore be assigned. The possession, which is an essential characteristic of a legal lien, must be actual, and either by the person himself who claims the lien or by his own agent. A question may arise by whom the delivery is to be made. Where a person, in pursuance of the authority and directions of the owner of any goods, delivers them to a tradesman for the execution of his trade thereon, the tradesman will not have a general lien against the owner for a balance due from the person delivering it, if he knew that the one delivering was not the real owner.
Thus a carrier who, by the usage of trade, is to be paid by the consignor, has no lien for a general balance against the consignee ; nor can a claim against a consignee destroy the consignor's right of stoppage in transitu. The possession must be continuous, for, the lien being dependent upon possession, once the possession is parted with the lien will as a rule be gone. The possession must also be in the ordinary course of business, and, moreover, it must be lawful. For example, if any one pays the freight of goods in order to obtain wrongful possession of them, he will not obtain a lien in respect of his payment ; but if, having a lien on the goods, and in order to obtain possession it is necessary for him to pay the freight, then he will have a lien for the freight he may have so paid. A creditor cannot
wrongfully seize his debtor's goods, and then claim to retain them by virtue of a lien ; and, on the other hand, a delivery by a debtor for the purpose of preferring a creditor will not be allowed to operate as a delivery sufficient for a lien to attach.
General liens are regarded by the law with disfavour and are not encouraged. The courts therefore strictly scrutinise the circumstances under which a general lien is claimed, and, generally speaking, will recognise its existence only when it arises from express contract between the parties, the usage of trade, or by reason of previous dealings between the same parties wherein such a lien has been allowed ; but where a general lien has been once established, the courts will not allow it to be disturbed. Of course where a general lien exists, a particular lien is included. Perhaps the best known instances of a general lien arising out of usage are those afforded by the relationships of solicitor and client, banker and customer, and pr incipal and factor. A solicitor has a lien for the general balance of his account upon all papers of his client which may come into his possession during the course of his professional employment. But he can obtain no greater right to the possession of those papers than the client himself had, and, con sequently, if the latter was merely a trustee or bailee of them for a third party, the solicitor must deliver them up to their rightful owner upon demand. And a banker would have a general lien upon all bills deposited with him by his customer for a general account, but not on securities casually left in his possession after he had refused to advance money upon them. And a factor has a lien upon each portion of goods in his possession, and on the proceeds of their sale for his general balance, as well as for the charges upon those particular goods. But a factor does not acquire a general lien in respect of any debts which may have accrued from his principal before the relationship between them of factor and principal had been actually created. If a number of tradesmen, not obliged by law to receive the goods of any one who offers, for the purposes of their trade agree not to receive goods unless they may be held subject to a general lien for the balance due to them, and their customers know this, and leave the goods, the lien attaches. And the same is true of an individual under the same circumstances. But where a tradesman is obliged to receive the goods, as in the case of a common carrier, then a lien for his general balance will be inferred only when an express assent thereto, on the part of the customer, can be clearly shown. As an illustration of a general lien arising by reason of previous dealings, the case may be instanced of a debtor who, having already pledged property to secure a loan, borrows a further sum ; here it will generally be understood that the creditor's lien is for the whole debt.