PRIVILEGE; HYPOTHECATION.
In Scotch lam what corresponds to the common law lien is included under the rights termed hypothec and retention, though cer tain rights of retention are also called liens; Ersk. Prin. 374. See RETENTION ; HYPOTHE CATION.
.Common Law Lien. As distinguished from the other classes, a lien at common law con sists in a mere right to retain possession un til the debt or charge is paid. Jordan v: James, 5 Ohio 88 ; Taylor v. Baldwin, 10 Barb., (N. Y.) 626; Houston & T. C. Ry. Lo. v. Bremond, 66 Tex. 159, 18 S. W. 448.
In the case of a factor an apparent ex ception exists, as he is allowed a lien on the proceeds of goods sold, as well as on the goods themselves. But this seems to result from the relation of the parties and the purposes of the bailment ; to effectuate which, and at the same time give a security to the factor, the law considers the possession, or right to possession, of the proceeds, the same thing as the possession of the goods them selves ; Bank of Mutual Redemption v. Sturgis, 9 Bosw. (N. Y.) 660; Story, Ag. § 111.
A particular Lien is a right to retain the property of another on account of labor em ployed or money expended on that specific property.
A general Lien is a right to retain the property of another on account of a general balance due from the owner. 3 B. & P. 494. Of course, where a general lien exists, a particular lien is included.
Particular liens constitute the oldest class of liens, and the one most favored by the common law ; 4 Burr. 2221; 3 B. & P. 126. But courts ceased to originate liens at an early period ; 9 East 426 ; while general liens have been looked upon with jealousy, being considered encroachments upon the common law and founded solely in the usage of and for the benefit of trade ; 3 B. & P. 42, 26, 494.
Liens either exist by law, arise from usage, or are created by empress agreement. Liens which exist by the common law, generally arise in cases of bailment. Thus, a particular lien exists when goods are de livered to a handicraftsman of any sort for the execution of the purposes of his trade upon them; see fnfra; or where a person is, from the nature of his occupation, under a legal obligation to receive and be at trou ble or expense about the personal property of another ; 3 B. & P. 42 ; Cummings v. Har
ris, 3 Vt. 245, 23 Am. Dec. 206 ; 5 B. & Ald. 350.
A lien sometimes arises where there is no bailment, as the maritime liens such as salvage, and a finder's lien for a reward, as to both of which, see infra. But this principle does not apply, generally, it is said, to the preservation of things found upon land, where no reward is offered ; 2 W. Bl. 1107 ; Baker v. Hoag, 7 Barb. (N. Y.) 113 ; Etter v. Edwards, 4 Watts (Pa.) 63 ; Amory v. Flyn, 10 Johns. (N. Y.) 102, 6 Am. Dec. 316 ; Story, Salim. § 621.
Liens which arise by usage are usually general liens, and the usage is said to be either the general usage of trade, or the particular usage of the parties ; 3 B. & P. 119 ; 4 Burr. 2222.
The usage must be so general that the party delivering the goods may be presumed to have known it, and to have the right of lien a part of the contract ; 4 C. & P. 152 ; 3 B. & P. 50. And it is said that the lien must be for a general balance arising from similar transactions between the par ties, and the debt must have accrued in the business of the party claiming the lien ; 1 W. Bla. 651; and it seems that more decisive proof of general usage is required in those occupations in which the workmen are re quired to receive their employment when offered them, such as carriers ; 6 Term 14; 6 East 519. But where a general lien has been once established, the courts will not allow it to be disturbed; 1 Esp. 109.
A general lien from particular usage be tween the parties is presumed from proof of their having before dealt upon that basis ; 6 Term 19. If a debtor, who has already pledged property to secure a loan, borrow a further sum, the lien is for the whole debt ; 2 Vern. 691.
Liens, general or particular, may be cre ated by empress agreement of parties; Cro. Car. 271; 6 Term 14; as when property is delivered under such agreement for repair or the execution of any purpose upon it or in case of pawns ; 2 Kent 631. And an agree ment among tradesmen to require such lien, if known to the bailor, will bind him as by a lien of this kind. A tradesman obliged to accept employment from all comers cannot by mere notice create such lien by implica tion; express assent must be proved; 3 B. & P. 42 ; 5 B. & Ald. 350.