ulent dispossession of the lien-claimant does not defeat the latter's claim if he is prompt to repudiate.1 Of course, with or without the lien as security, the debtor may be treated by his creditor as personally liable for what is owing.2

Cases might arise where a lien would revive after the party acquiring it parted possession without intending to abandon his lien; but in general, if the property be assigned bona fide for valuable consideration while out of the possession of the person acquiring the lien, and afterwards return into his hands, the lien does not revive as against the assignee. Non-possession is a fact more unfavorable to the lien-claimant as against bona fide third parties for value acquiring rights without notice of the lien, than merely as between himself and his own debtor. We may add that concealed liens are never to be favored.5

lien. Nor does a mere right of setoff to an amount equal to that for which the lien is claimed destroy the lien; for here the situation is that of two parties with equal demands, one of whom has his demand secured collaterally, while the other has not. Pinnock v. Harrison, 3 M. & W. 532; Clark v. Fell, 4 B. & Ad. 404.

1 Bigelow v. Heaton, 6 Hill (N. Y.) 43. But as to the intervening rights of bona fide third parties for value without notice, he may sometimes be hindered in his lien by non-possession. A sale of the goods to a third person by the owner, without the knowledge of the lien-claimant, will not defeat the rights of the latter. Bayley v. Merrill, 10 Allen, 360.

2 Tucker v. Taylor, 53 Ind. 93; Garrard v. Moody, 48 Ga. 96; 24 Ill. 99.

3 Godin v. London Assurance Co., 1 Burr. 489; Spring v. South Carolina Ins. Co., 8 Wheat. 268.

4 See Haak v. Linderman, 64 Penn. St. 499.

5 See Hanna v. Phelps, 7 Ind. 21. From what has been said, it will be readily understood why a common

VOL. I.

32

carrier who has once completely and unconditionally delivered the goods loses his lien. Boggs v. Martin, 13 B. Monr. 243. See Schoul. Bailm. §§ 546, 549. And, since he is bound to deliver the goods safely, circuity of action is now quite commonly avoided by permitting the owner to deduct, as against the charges for which the carrier's lien is given, any damage done the goods for which the carrier is liable. Humphreys v. Reed, 6 Whart. 435; 2 Redf. Railw. 3d ed. 156. Into the mutual rights and liabilities of parties concerned in railway transportation it is not our purpose here to enter; but the usual modes of waiving liens apply here as to carriers and bailees generally, though with much favor in the former instance. We find liens sometimes created upon railway shares for the owner's indebtedness to the company; also liens upon cars and rollingstock, and liens of contractors and material-men; which often give rise to intricate questions in connection with the subject of railway mortgages and the rights of bondholders. See 1 Redf. Railw. 3d ed. 114, 122; 2 497

§ 387. Method of enforcing a Lien. The method of enforcing a common-law lien is quite imperfect; and here we find a right without its full corresponding remedy. Chancellor Kent says that a lien is, in many respects, like a distress at common law, and gives the party detaining the chattel the right to hold it by way of pledge or security for the debt, and not to sell it. The difficulty of applying an adequate remedy is obvious, therefore, in cases where the property detained becomes a constant expense to the keeper. Thus, an innkeeper detaining his guest's horse must constantly feed the horse to keep his lien alive; while he has to await the results of a long and tedious proceeding in the nature of a bill of chancery, before he can get the lien enforced if indeed it is enforceable in equity at all.2 The same principle as concerns the enforcement of a lien applies to common carriers as to other lien creditors; and they have no commonlaw right to sell the goods on which their transportation charges remain unpaid.

But the modern tendency of legislation is towards increasing the efficacy of remedies, so as to make them more nearly commensurate with those rights which the law means to confer, in this respect assimilating them more to a pledge security. Thus, in some States an innkeeper is allowed, by statute, to sell the property at public sale at so many days after demand. A power of selling for the satisfaction of liens, and for the cost or expenses of carriage, storage, or labor bestowed on the goods, is likewise given to commission merchants, factors, and common carriers, by our local legislation; and a summary and cheap judicial process, after demand, for the prompt satisfaction of other lien charges, is sometimes prescribed. But few States have as yet enacted

ib. 515; Jones Railway Securities, passim, United States v. New Orleans R. R., 12 Wall. 362.

12 Kent Com. 642; 1 Holt, N. P. 383; Lovett v. Brown, 40 N. H. 88; Schoul. Bailm. § 126.

2 Ib. See Fox v. McGregor, 11 Barb. 41; 30 Tex. 715. The jurisdiction of equity to enforce a com

mon-law lien has been denied; notwithstanding there is no adequate remedy at law, and even detention under the lien works inconvenience. Jones Liens, § 1038; Thames Iron Works Co., Re, 1 J. & H. 93. Aliter, 5 Dana, 310; 78 II. 116.

8 See Young v. Kimball, 23 Penn. St. 193; Purd. Dig. 536; Suppl.

comprehensive provisions on this subject; the aim being rather to aid certain classes of lien-claimants. And again, independently of legislation, the express contract of the parties, or possibly some reasonable and well understood business usage so prevalent as to manifest an implied contract between them, might enlarge the remedies of the lienclaimant; for as reasonable and well-known custom or express contract may confer a lien, so also may reasonable custom or, better still, express contract be allowed to dictate to some extent the method of its enforcement. But wherever the remedy is thus enlarged, the courts are disposed to regard the bailor's interests sedulously, so as to require, by way of just precaution, a reasonable demand and notice to be given before a sale to satisfy the lien can be made;1 and the sale, being in derogation of common law, should be fair and bona fide and upon due formality.

1344; Wms. Pers. Prop. 3d Am. ed. with Wetherell's note, 28-31; Mass. Pub. Sts. (1882) c. 96; Schoul. Bailm. § 550.

1 Pothonier v. Dawson, 1 Holt, N. P. 383; Brown v. M'Grau, 14 Pet. 479; Schoul. Bailm. § 126; Whitney v. Wyman, 24 Md. 131; Marfield v. Goodhue, 3 Comst. 62; Parker v. Brancker, 22 Pick. 40; Frothingham v. Everton, 12 N. H. 239. And see 2 Kent Com. 642, Comstock's n.; Story Agency, § 74.

The American doctrine as concerns the lien of factors appears to be that the consignor of goods has no right, by any orders given after advances have been made or liabilities incurred, to suspend or control the factor's right of sale, except as to the surplus of the consignment, beyond these advances or liabilities. Brown

v. M'Grau, 14 Pet. 479. Yet the rule, as recently announced in England, is that a factor has no right to sell the goods contrary to the order of his principal, though the latter has neglected on request to pay the advances. Smart v. Sandars, 5 C. B.

895. In some American cases the right to sell contrary to orders is limited to cases where, if the factor sold under his principal's orders, his own security would be impaired. Field v. Farrington, 10 Wall. 141; Weed v. Adams, 37 Conn. 378.

While the contract between the parties may frequently regulate the rights and remedies, so far as concerns advances made and liabilities incurred on account of a consignment of goods, yet we may well question whether any person has a right by common law to add to his lien upon a chattel his charge for keeping it till the debt is paid. That he has no such right was distinctly announced in a leading English case not long ago; though, as the circumstances were not in this case of the strongest kind, it is possible that the principle was understood to apply to charges in the keeping which are for the lienclaimant's peculiar benefit, and not for the benefit of the person whose chattel is in his possession. Somes v. British Empire Shipping Co., 8 H. L. Cas. 338; s. c. 1 Ell. B. & L.

§ 388. Right of Owner of Goods to discharge Lien, etc. Wherever the holder by lien of property makes illegal and improper charges, and the owner pays under protest and gives notice accordingly, he may sue in an action for money had and received to recover it. And in all cases, the owner of the property, on tendering satisfaction of the lien, has a right to the property; and if the creditor refuse to restore it after such a tender, he is answerable in damages for his misconduct; nor is even a formal tender requisite on the owner's part, if the person in possession of the goods has distinctly signified his refusal to accept the amount really due.2

§ 389. Equitable Liens considered. common-law lien, strictly so called.

So much, then, for the But as the word "lien"

is used in a much larger sense, so we find other kinds of liens spoken of as such in the books. The equitable lien is something which courts of chancery constantly recognize, and the right thus borrowed from the civil law has its foundation in natural justice. By equitable liens we usually mean all such liens as exist in equity and of which courts of equity alone take cognizance. And a very common kind is that which exists between vendor and vendee; the rule being that every one who sells property has a lien upon it for any part of the purchase-money which is unpaid, against all persons except a purchaser without notice for valuable consideration. a sort of constructive trust arises for securing the unpaid purchase-money, and to the extent of the lien the purchaser becomes a trustee for the vendor, and the burden of proof is upon the latter to establish a waiver of this lien. Even the bona fide purchaser without notice for valuable consideration

353. American statutes, as we have just seen, frequently change the rule in this respect. And where merchandise is consigned to a commission merchant who makes advances on them, the legal presumption favors his right to sell them in the exercise of a sound discretion and to reimburse himself for his advances. Howard v. Smith, 56 Mo. 314. See Story Agency, 9th ed. § 371.

Here

1 Somes v. British Empire Shipping Co., 8 H. L. Cas. 338.

2 Chilton v. Carrington, 16 C. B. 206; Jones v. Tarleton, 9 M. & W. 675; Roberts v. Yarboro, 41 Tex. 449; Schoul. Bailm. §§ 125, 552.

8 Story Eq. Jur. § 1217; 4 Kent Com. 153; Chapman v. Tanner, 1 Vern. 267; Bayley v. Greenleaf, 7 Wheat. 46; Patterson v. Edwards, 29 Miss. 67.

has only a countervailing equity to the extent of his actual payments; and if but part of his own purchase-money has been paid, the part retained by the vendee is primarily chargeable with the lien.1 But cases of this sort usually arise with reference to real estate, while we are to concern ourselves in this treatise with personal property.2

An equitable lien is sometimes acquired by the deposit of title-deeds; but liens of this sort are not in general greatly favored. To constitute an equitable lien on a fund, there must in each case have been some distinct appropriation thereof by the debtor: it is not enough that the fund was created through the efforts and outlays of the party claiming a lien. The lien of solicitors, attorneys, and trustees on their respective funds is recognized in equity; 5 and so is that of joint tenants in certain cases. And the usual way of enforcing a lien in equity is by selling the property to which the lien is attached.6

But this lien which equity recognizes is independent of the possession of property; while liens at common law require possession, as we have seen, and in fact consist rather in a right to retain possession than in anything else. And hence it is that the rights of vendor and vendee, as concerns a lien for purchase-money, are found to be so different in the two systems. For while property which courts of equity handle is made subject almost absolutely to a just lien for unpaid purchase-money, by way of judicial construction on behalf of the vendor, the common-law rule applicable to chattels is, that, so long as the vendor retains actual or constructive possession of the goods, he has a lien upon them for so much of the purchase-money as may remain unpaid, but that when he has once delivered them out of his own possession his lien

1 Ib.; Story Eq. §§ 1217-1220, 1224, 1232, 1233; Mackreth v. Symmons, 15 Ves. 329.

2 See vol. 2 as to the vendor's lien in sales of personal property.

8 See Goode v. Burton, 1 Wels. H. & G. 189; 4 Kent Com. 150; Story Eq. Jur. § 1020. There may be a pledge of title-deeds. § 395.

4

Wright. Ellison, 1 Wall. 16; Watson v. Duke of Wellington, 1 Russ. & My. 602.

5 See supra, § 383.

6 See Story Eq. Jur. § 1217; Haymes v. Cooper, 33 Beav. 431; 2 Spence, 803.