remain in their hands in this capacity. The lien extends even to the price of the goods which one has sold as factor, though he has parted with their possession; and he may enforce payment from the buyer himself against the principal. It may extend to all sums for which he has become liable for his principal as surety or otherwise; by virtue of his relation.2 The doctrine of lien applies as well to purchasing as to selling factors. And usually the factor's lien is good even as against attaching creditors; while if he has sold part of the goods, he is entitled to a lien upon the residue for his expenses, advances, and commissions. But the general lien, in such a case, applies only to goods received by a factor as such; and to give him a lien upon goods consigned to and not actually received by him, the consignment ought to be to him in terms, and he should have made advances or given acceptances on the faith of it. The modern business of brokers is not so strictly limited as formerly; and, at all events, a broker has a specific lien for his charges when he has such possession of the property that he can exercise the right.5

§ 384. General Lien by Express Agreement. A general lien, like a particular lien, may arise by express agreement of the parties.6 A familiar instance of this rule is afforded in the case where one entitled to a particular lien gives notice that he will receive no goods for the purpose of his

merchants who have advanced on goods of a principal insured by them have a lien on the insurance money in case of accidental fire. Johnson v. Campbell, 120 Mass. 449. And see Brown v. Coombs, 63 N. Y. 598; Burrus v. Kyle, 56 Ga. 24; 26 La. Ann. 22. A lien cannot be asserted by a factor by way of fraudulent preference under bankrupt acts. Nudd v. Burrows, 91 U. S. 426; Copeland v. Stein, 8 T. R. 199.

1 Story Agency, §§ 34, 377; 2 Kent Com. 640, and cases cited; Dixon v. Stansfield, 10 C. B. 398; Knapp v. Alvord, 10 Paige, 205;

Brander v. Phillips, 16 Pet. 129. See Houghton v. Matthews, 3 Bos. & P. 485.

A factor's particular lien for advances is often recognized by local statute. 137 U. S. 234.

2 Story Agency, § 376; Hidden v. Waldo, 55 N. Y. 294; Hammond v. Barclay, 2 East, 227.

3 Bryce v. Brooks, 26 Wend. 367; Sewell v. Nichols, 34 Me. 582. But see Gray v. Bledsoe, 13 La. 489.

4 See Davis v. Bradley, 28 Vt. 118. 5 Barry v. Boninger, 46 Md. 59; Jones, § 420.

See supra, § 380.

business, except on condition that his lien shall include both charges on the particular goods and for the general balance of his account; which notice, being brought to the knowledge of parties dealing with him afterwards, will affect their liabilities accordingly.1 Carriers and innkeepers frequently try to limit their own responsibilities and sometimes to increase their lien security by general notice; but the courts are not readily disposed, in the latter instance at least, to concede to their wishes.2 As to cases of lien by express contract, it may be generally observed that direct words or stipulations inconsistent with any other understanding of the parties suffice for creating it; but every lien which is founded upon agreement must be in just conformity to the agreement, and is not to be extended further by construction.3

A general lien by custom or business usage, such as we have above noticed, appears, when closely examined, to be in truth that of an implied contract founded upon the custom. And so free are parties to regulate this subject by an express contract, whether the effect be to control a business usage or not, that they may either create a lien or exclude the lien which otherwise would operate. The mere existence of a special agreement will not, however, of itself exclude the right of lien; but if any of its terms be inconsistent with this right, it will do so. Parties have lawful power to deal as they please with their own property, and it only remains for them to make their mutual understanding plain in any particular case. But it may be added that the words "lien," "pledge," and "mortgage," are often used carelessly and interchangeably with reference to personal property; and some have thought that, properly speaking, this lien by contract,

1 See Kirkman v. Shawcross, 6 T. R. 14; Gladstone v. Birley, 2 Mer. 401. 22 Kent Com. 637, commenting on Oppenheim v. Russell, 3 Bos. & P. 42; Rushforth v. Hadfield, 7 East, 224; Ang. Carriers, § 357 et seq.; Schoul. Bailm. § 548; Adams v. Clark, 9 Cush. 215.

3 Cases supra; also, Bank of Washington v. Nock, 9 Wall. 373; Raitt v. Mitchell, 4 Campb. 146; Ex parte Langston, 17 Ves. 231.

4 Smith Merc. Law, 8th ed. 555, 556; Chase v. Westmore, 5 M. & S. 180.

1

as we call it, is rather to be presumed as in the nature of an agreement for a pledge, than as intended for a mere lien.1

§ 385. Lien, how made and kept sure; Possession necessary. -Having thus considered the various kind of liens known to the common law, we next inquire what steps are necessary to make and keep the lien strong and sure. In every case, then, a delivery of the property is essential, in order that there may be a lien upon it; by which is meant that the goods must have come into the rightful possession of the lien-claimant or his agent. It is true that this possession by the lien-claimant may be actual or constructive; but the right of lien is the right to retain what one already has in his keeping, and where there is no possession there can be no lien. Furthermore this possession of the goods must have been rightfully obtained; for a creditor cannot wrongfully seize upon his debtor's goods, and then claim to hold them by virtue of a lien; nor, if an agent delivers the property without due authority from his principal, can a lien thereby arise.3 But liens may undoubtedly be acquired through the acts of agents acting within the scope of their employment. And it is held that an excessive claim for a proper kind of lienthere being nothing improper claimed except the amount will not invalidate the lien as to the amount justly due.5

But if possession is thus essential to the creation of a lien, it is no less necessary to its continued existence. And whenever the party voluntarily parts with the possession of the goods on which he has a lien, the lien is lost and cannot be reasserted on merely regaining them. So strict is this rule and the requirement that the lien-claimant shall consistently

1 See Sir Wm. Grant in Gladstone v. Birley, 2 Mer. 404; Gibbs, C. J., in Wilson v. Heather, 5 Taunt. 642. But the indiscriminate use of the term "lien" is too strongly established, for trying thus to restrain the word to a right arising by mere operation of law. Story Agency, § 356; 4 M. & W. 278.

2 Houghton v. Matthews, 3 Bos. & P. 485; 2 Kent Com. 638; 3 T. R.

119; M'Combie v. Davies, 7 East, 5; Kollock v. Jackson, 5 Ga. 153.

8 See 2 Kent Com. 638, 639; Story Agency, § 361; M'Combie v. Davies, 7 East, 5.

4 Ib.

5 Allen v. Smith, 12 C. B. N. s. 638; Busfield v. Wheeler, 14 Allen, 139.

6 Perkins v. Boardman, 14 Gray, 481; Sch. Bailm. §§ 123, 327, 545.

maintain that character, that if the lien-claimant cause the goods to be taken in execution in his own suit and buy them in afterwards, the nature of his possession is so changed that the lien is lost, although the property never left his premises.1 The question what amounts to a complete divestment of possession in such cases depends mainly upon the intention of such divestment of possession, for it is voluntary and not involuntary relinquishment which puts an end to the lien; though wrongful acts of the possessor might operate to the same end upon his parting with possession.2 Moreover, one may, by words and behavior, be estopped from asserting a lien as against third parties whose action he has thereby influenced, even where the dispossession may not be complete as against the debtor alone. But if the assignment or deliv

1 Jacobs v. Latour, 5 Bing. 130. See 2 Kent Com. 639; Smith Merc. Law, 8th ed. 559; Spring v. South Carolina Ins. Co., 8 Wheat. 268; Stickney v. Allen, 10 Gray, 352.

2 Schoul. Bailm. §§ 123, 545; 58 Penn. St. 414; Davis v. Bigler, 62 Penn. St. 242; Robinson v. Larrabee, 63 Me. 116; Tucker v. Taylor, 53 Ind. 93. An innkeeper's lien is not lost merely by his guest's occasional absence. Allen v. Smith, 12 C. B. N. s. 638. Nor because of his being fraudulently dispossessed of the effects. Manning v. Hollenbeck, 27 Wis. 202. Cf. Perkins v. Boardman, 14 Gray, 481. And see 48 L. T. N. s. 863.

A common carrier's lien is not lost by the procurement of a false and fraudulent delivery. Bigelow v. Heaton, 6 Hill, 43; The Bird of Paradise, 5 Wall. 545; Mors Le Blanch v. Wilson, L. R. 8 C. P. 227. Relinquishment of the carrier's lien is not readily presumed, but it may be shown. Schoul. Bailm. §§ 545, 546; Angell Carriers, § 374. The lien is not necessarily relinquished by taking special security for payment of the debt. Angus v. McLachlan, 48 L. T. N. s. 863.

8 Blackman v. Pierce, 23 Cal. 508;

Weeks v. Goode, 6 C. B. N. s. 367; Roger v. Weir, 34 N. Y. 463; Schoul. Bailm. § 123. Where merchandise of a particular kind is stored, and portions are from time to time delivered without the payment of storage dues, the warehouseman has usually a lien upon the portion left for the storage of the whole; and a like principle is often applied to goods upon which labor is expended by a tradesman; the rule as to sales being that whenever, in accordance with the intention of the parties, as legally manifested, the property in the part of the goods not delivered does not pass to a vendee, a vendor's right of lien for the whole price is reserved on the part retained. Schmidt v. Webb, 9 Wend. 268; Parks v. Hall, 2 Pick. 213; Blake v. Nicholson, 3 M. & S. 167. But the acceptance of a delivery-order by warehouseman may sometimes amount to a loss of his lien, on the ground that he thereby becomes the agent of the vendee who presents it; circumstances and mercantile usage still regulating the case. Pearson v. Dawson, 1 Ell. B. & Ell. 448. A bailee for hire may lose his lien on a horse by allowing the possession to

a

ery

of the property on which the lien once fastened be merely for the lien-claimant's benefit, or by way of pledge or security to the extent of his lien, and with notice of its existence, his possession still continues and his lien as well.1 Nor is the lien accruing to a partnership necessarily lost by the dissolution of the firm.2

§ 386. Waiver, Extinguishment, or Exclusion of Lien. We have seen that the right of lien may be excluded at the outset by special agreement of the parties. It may likewise be waived by the subsequent agreement of the parties. Cases of this latter sort frequently arise in connection with the fact of non-possession: as, for instance, where the lien-claimant gives credit by extending the time of payment, or takes distinct and independent security for the debt; for in the one case he manifests an intention to rely upon the personal credit of the owner of the goods, and in the other to allow the security to be substituted for the lien.3 In general, a special agreement made at any time, which is inconsistent with the lien, or from which its waiver may be fairly inferred, has the effect of extinguishing the lien. And even the mere admissions of the lien-claimant are sometimes used against him; or his omission to seasonably announce a claim on that ground, while claiming the goods on some other ground, may be construed into a waiver.5 But the agreement which dispenses with a lien ought, at least, to be clearly inconsistent with its continued existence.6 False and fraud

part, though the horse be still kept in his stable. Perkins v. Boardman, 14 Gray, 481.

1 M'Combie v. Davies, 7 East, 5; 2 Kent. Com. 639; Urquhart v. M'Iver, 4 Johns. 103.

2 Busfield v. Wheeler, 14 Allen, 139.

3 Gilman v. Brown, 1 Mason, 191; Cowell v. Simpson, 16 Ves. 275; 2 Kent Com. 638; Cowper v. Green, 7 M. & W. 633; Story Agency, §§ 366, 367.

4 Ib. And see Weeks v. Goode, 6 C. B. N. s. 367; Lambard v. Pike, 33

Me. 141; 63 Me. 116; Tucker v. Taylor, 53 Ind. 93; Hale v. Barrett, 26 Ill. 195; Story v. Flournoy, 55 Ga. 56. The silence of a written contract respecting lien can have no such effect. 15 N. Y. Supr. 613.

5 Weeks v. Goode, 6 C. B. N. s. 367.

6 Outcalt v. Durling, 1 Dutch. 443; Spaulding v. Adams, 32 Me. 211. Neither the delivery of the goods to the creditor's agent, nor the giving of a bond by a garnishee in attachment with condition for safe-keeping and delivery, amounts to a waiver of