The lien by usage," and "that where there is some legal relation between the parties," belong to one class, and are not distinguishable. They are both included under liens which do not arise from ex press, but from implied contract. Lien may be defined as primd facie a right accompanying the implied contract. (Lord Eldon.) The " usage of trade" is merely evidence from which contract is to be im plied : parties who mutually act in con formity to a custom have in effect, though not in form, made a contract. The term "legal relation" is only another mode of expressing the mutual rights and duties of the same parties, who by their acts have brought themselves within the limits of a custom, and so given evidence of an intention to make a contract Thus an innkeeper has a lien upon the horse of his guest, which he takes into his stable to feed ; a carrier has a lien on the goods which he carries; a tailor who is em ployed to make a suit of clothes has a lieu on them for the price of his labour, if the cloth be given to him for the purpose of making the clothes ; and if he furnishes the cloth, and his customer, after the clothes are made, agrees to have them, and so obtains the property in them, the tailor has still a lien on the clothes, or any part of them, for the whole price. The contract in these and similar cases is for payment of money on one side, in consideration for certain acts to be done on the other ; and the delivery by one party of his property to the other, who is to do some act to it, or in respect of it, for money, implies a payment of the money before the owner's right to repos sess the thing can commence. Where the owner never had the property or pos session of the raw materials, but acquires the property in a thing by his bare assent, as in the case just mentioned, the tailor's prior right of property is converted into a mere right to hold till his debt is paid, or, in other words, instead of property he has a lien. If the owner of a thing sells it, and agrees to receive the price at a future day, he cannot retain the thing till the day of payment, for he has, by the form of his contract, excluded himself from such right to a lien.
Lien, unless there be an express con tract, or a custom to the contrary, must from its nature be particular, that is, must have reference to a particular trans action and to a particular thing. When it is general, that is, where the right to retain a particular thing is not limited to a particular transaction, but exists with respect to other transactions also, there must be express contract, or the deal ings of the parties must be such as to create that implied contract which arises from acts done in conformity to well-known usage.
Lien may be lost by voluntarily part ing with the thing, by express agreement, or by agreement to be implied front acts. In general, when a person has a lien for a debt, he waives it by taking security for the debt. A solicitor has a lien for his
bill on his client's papers which come into his possession in the course of transacting his business ; but if lie accept a security for his debt, he can be legally compelled to give up the pa r% From the ex pressed agreement for a special security there necessarily arises the implied agree ment to give up the thing which is retain ed. the acceptance of such special security being equivalent to an agreement to re ceive the debt or demand at a future day, and such agreement as to future payment being inconsistent with the retailing the thing, which act of retaining is equivalent to a claim for present payment. A factor, who has a lien on goods in his possession, both for his outlay on or with respect to those goods and for his general balance. loses his lien if he enters into an express contract for a particular mode of payment. If usage of trade and acts in conformity to it can be considered as evidence of a contract that goods shall be retained by one person as a security for a debt or ba lance due to him from another, an ex press contract for securing payment of such debt or balance must be considered as inconsistent with the implied contract, and therefore as determining it.
In Equity, the vendor of an estate, though he has executed a conveyance and parted with the possession without being paid, still has his estate as a security for such part of the purchase-money as is un paid. This security is generally, though not with strict propriety, called the ven dor's lien. The ground of this so-called lien lies in the nature of the contract: one party contracts to give land for money, and the other contracts to give money for land. Until both parties have performed their engagement, the land and the money cannot be considered as exchanged.
Lien, from its nature, is incapable of transfer. Generally a lien gives no right to sell, except by particular custom. Where a factor who has a lien on the goods of his principal, pledges them for a loan of money, this is no transfer of the lien : the goods are a pledge or pawn in the hands of the lender, who may hold them as a security for his advance to the amount of the factor's lien. The lender may have a right to retain the goods as a security to precisely the same amount as the factor ; hut his right to retain flows from a different source.
The practical questions which arise under the general doctrine of lien are numerous and sometimes not easy of solu tion ; many of them are of the greatest importance to the mercantile community. 1 he chief cases in which lien exists may he referred to the law of Agent, Attorney, Bailment, Currier, and Factor. Mon tagu's work On Lien' contains a collec tion of a considerable number of particu lar instances.