Particular liens may be created by mere operation of law from the relation and a,cts of the parties independently of any contract, as well as by any of the modes available for the creation of general liens. When a person has bestowed Inborn. and skill in the alteration or improvement of any article delivered to him, he has a lien on it for his charges; and so, where a person is, from the nature of his occupation, under a legal obligation to receive and be at trouble or expense about the personal property of another, in every such case he is entitled to a particular lien thereon. Thus tailors, millers, shipwrights, warehousemen, wharfingers, innkeepers, and carriers have each a particular lien ; so lia.s a trainer for the expense of keeping and training a racehorse, for by his instruction he has wrought an essential improvement in the animal's character and capabilities. And this trainer's lien exists not withstanding the owner of the horse has a right to take it out of his hands from time to time. I3ut the rule does not appear to extend to agisters or keepers of livery stables, for they personally do nothing to improve the animals left with them. But it does extend to innkeeper:3 who may detain a guest's horse for its keep, but cannot retake it after giving it up. The reason for this is that an innkeeper cannot refuse to take in his guest's horse. But an innkeeper has no lien in respect of a debt due to him in a capacity other than that of innkeeper (..1fatstitlit v. Tralclo Hotel Co.). Every one, whether a solicitor or not, has by the common law a lien on the specific deed or paper delivered to him to do anv specific work or business upon ; but not on any other papers of the same party, unless Ile is a solicitor. A particular lien may even arise where there is strictly no bailment of the property, for where goods at sea (not on land) come into possession of a party by finding, and lie has been to some trouble and expense about them, he is entitled to retain them until he is reimbursed his expenses.
How liens may be lost.—AVe have already seen that if the goods are parted with, except under some circumstances in the case of factors or insurance brokers, the lien, in general, is lost. But the parting to have this effect should in general be voluntary, and accordingly where the master of a ship in obedience to custonis regulations lands goods at a particular wharf or dock, lie doesplot thereby lose his lien on them for freight. Payment of the debt naturally discharges the lien; and so does a binding acceptance of a composition. And if the creditor takes a security for the debt this will prima fuck. extinguish the lien. But in such a case the actual effect of the transaction will depend upon the particular circumstances, and especially upon the intention of the parties whether the security was to be cumulative or substitutive. If the former, then the lien continues; if the latter, it is extinguished. But, as a general rule, if a security is taken which is payable at a distant date the lien is gone. Merely to pledge the goods will entail the forfeiture of the lien thereon; and so will it, upon a demand being made by the owner for their delivery, to give an excuse for their retention other than that afforded by the lien claimed. I3ut depositing the goods in a warnl.euse for their safety's sake will not operate as a discharge of the lien. Special agreement to that effect between the parties will of course forfeit or waive the lien; and so also will a contract between the parties which is inconsistent with the existence of a lien. But the lien may revive and reattach, upon the property coming again into the possession of the person entitled to the lien, if the previous parting with the property had been involuntary, and it has so come as the property of the same owner against whom the right exists, and no new intermediate equities have affected that right. The lien will not be lost merely because legal proceedings for the recovery oi the debt are barred by the statute of limitations, for the debt still exists even though the creditor is unable to recover it at law.
Under the Sale of Goods Act an unpaid vendor, who is in possession of the goods, has a lien thereon until tender or payment of the purchase price in the three following cases : (a) where the goods have been sold without any stipulation for credit ; (b) where they have been sold on credit, but the term of credit has expired; and (c) where the purchaser becomes insolvent.
Rights under a lien.—A lien confers upon the person who holds it only the passive right of retaining the goods. An innkeeper, however, can sell under his statutory power, and a solicitor can obtain an order from the court. The most practical course is for the creditor to sue the debtor, ancl, having obtained a judgment, to levy an execution upon the goods over which he has the hen, and sell them under the execution. But if this execution is fraudulent the creditor will gain nothing, but will lose his lien.
of shipowner to land goods on default by their owner. —Where the owner of goods imported in a ship from abroad into the Unittd Kingdom fails to make entry thereof, or, having made entry, to land the same or take delivery of them, and to proceed therewith with all convenient speed, by the times severally herein aftermentioned, the shipowner, by virtue of the Merchant Shipping Act, may make entry of and land or unship the goods. The following are the times :—(a) If a time for the delivery of the goods is eZpressed in the charter-party, bill of lading, or agreement, then at any time after thc time so expressed ; (b) If no time for the delivery of the goods is expressed in the charter-party, bill of lading, or agreement, then at any time after the expiration of seventy-two hours, exclusive of a Sunday or holiday, from the time of the report of the ship. Where a shipowner thus lands goods he must place them, or cause them to be placed—(a) if any wharf or warehouse is named in the charter party, bill of lading, or agreement, as the wharf or warehouse where the goods are to be placed and if they can be conveniently there received, on that wharf or in that warehouse ; and (b) in any other case on some wharf or in some warehouse on or in which goods of a like nature are usually placed ; the wharf or warehouse being, if the goods are dutiable, a wharf or warehouse duly approved by the Commissioners of Customs for the landing of dutiable goods. Any time before the goods are landed or unshipped the owner can himself land or take delivery of them,:and his entry in that case will be preferred to any entry whith may have been made by the shipowner. If goods, for the purpose of convenience in assorting the same, are landed at the wharf where the ship is discharged, and their owner at the time of that landing has made entry and is ready and offers to take delivery, and convey them to some other wharf or warehouse, they must be assorted at landing, and, if demanded, inust be delivered to him within twenty-four hours after assortment. The expense of and consequent on that
landing and assortment is to be borne by the shipowner. Any time before the goods are landed or unshipped the owner can make entry for their landing and warehousing at any particular wharf or warehouse other than that at which the ship is discharging ; and if he has offered and been ready to take delivery, and the shipowner has failed to deliver, and has also failed at the time of that offer to give him correct information of the time at which the goods ma be delivered, then the shipowner, before landing or unshipping, must give to the owner of the goods or of such wharf or warehouse as last mentioned twenty-four hours' notice in writing of his readiness to deliver the goods. And if the shipowner lands or unships the goods without that notice, he does so at his own risk and expense. Lien for freight.—When goods are landed from a ship, and placed in the custody of any one as a wharfinger or warehouseman, written notice should be given to the latter that the goods are to remain subject to a lien (if such is the case) for freight and other charges payable to the shipowner to an amount mentioned in the notice. Thereupon the goods so landed will remain in the hands of the wharfinger or warehouseman, subject to the same lien, if 'any, for such charges as they were subject to before the landing thereof ; and the wharfinger or warehouseman receiv ing them must keep possession until the lien is discharged. Should he fail to do so, he will be liable Lo make good to the shipowner any loss thereby occasioned to him. Such a lien for freight and other charges will be discharged--(1) upon the production to the wharfinger or warehouseman of a receipt for the amount claimed as due, and delivery to the wharfinger or warehouseman of a copy thereof or of a release of freight from the shipowner ; and (2) upon the deposit by the owner of the goods with the wharfinger or warehouseman of a sum of money equal in amount to the sum claimed as aforesaid by the shipowner. But, in the latter case, the lien is discharged without prejudice to any other remedy which the shipowner may have for the recovery of the freight. When a deposit is made as atove, the person who makes it has a period of fifteen days thereafter wherein, if if he desires so to do, to give to the wharfinger or warehouseman a written notice to retain it. This notice should state the sums, if any, which the owner of the goods admits to be payable to the shipowner, or as the case may be, that he does not admit any sum to be so payable. If no such notice is given, the wharfinger or warehouseman, at the expiration of the fifteen days, can pay the sum deposited over to the shipowner. Upon such a notice having been given, the wharfinger or warehouseman must forthwith apprise the shipowner of it, and pay or tender to him out of the sum deposited the sum, if ally, admitted by the notice to be payable, and retain the balance, or, if no sum is admitted to be payable, the whole of the sum deposited, for thirty days from the (late of the notice. At the expiration of those thirty days, the wharfinger or warehouseman must pay such balance or sum to the owner of the goods, unless legal proceedings have in the meantime been instituted by the shipowner against the owner of the goods to recover the balance or sum, or otherwise for the settlement of any disputes which may have arisen between them concerning the freight or other charges as foresail, and written notice of those proceedings has been served on the wharfinger or warehouseman. By any such payment the wharfinger or warehouseman will be discharged from all liability in respeet,thereof. If the lien is not discharged, and no deposit is made as above-mentioned, the wharfinger or warehouseman may, and, if required by the ship owner, must, at the expiration of ninety days from the time w hen the goods were placed ill his custody, or, if the goods are of a perishable nature, at such earlier period as in his discretion he thinks fit, sell by public auction, either for home use or for exportation, the goods or so much thereof as may be necessary to satisfy the charges hereinafter mentioned. Before making the sale he nmst give notice thereo by advertisement in two local newspapers, or in one daily newspaper published in London, and in one local newspaper ; and also, if the address of the owner of the goods has been stated on the manifest of the cargo, or on any of the documents which have come into his possession, or is otherwise known to him, send notice of the sale to the owner.of the goods by post. The title of a bona, fide purchaser of the goods will not be invalidated by reason of the omission to send this notice, nor is any such purchaser bound to inquire whether the notice has been sent. The proceeds of the sale should be applied by the wharfinger or warehouseman as follows, and in the following order :—(i) First, if the goods are sold for home use, in payment of any customs or excise duties owing in respect thereof; then (ii) in payment of the expenses of the sale ; then (iii) in payment of the charges of the wharfinger or warehouseman and the shipowner according to such priority as may be deter mined by the terms of the agreement (if any) in that behalf between them ; or, if there is no such agreement—(a) in payment of the rent, rates, and other charges due to the wharfinger or warehouseman in respect of the said goods; and then (b) in payment of the amount claimed by the shipowner as due for freight or other charges in respect of the said goods ; and the surplus, if any, shall be paid by the owner of the goods. Whenever any goods are placed in the custody of a wharfinger or warehouseman, under thd authority of this part of the Merchant Shipping Act, the wharfinger or warehouseman is entitled to rent in respect thereof, and also has power, at the expense of their owner, to do all such reasonable acts as in his judgment are necessary for the proper custody and preservation of the goods ; and he has a lien on the goods for the rent and expenses. But there is nothing to compel a wharfinger or warehouseman to take charge of any goods which he would not have been liable to take charge of if the Act had not been passed ; nor is he bound to see to the validity of any lien claimed by any shipowner under the Act. And nothing in the Act takes away or abridges any powers given by any local Act to any harbour authority, body corporate, or persons, whereby they are enabled to expedite the discharge of ships or the landing or delivery of goods ; nor takes away or diminishes any rights or remedies given to any shipowner or wharfinger or warehouseman by any local Act.