the courts on account of its intrinsic justice, and extends to
quasi-vendors, or persons in the same position, such as consignors
who have bought on behalf of a principal and forwarded the
goods. It is, however, defeated by a lawful transfer of the document
of title to the goods by the vendor to a third person, who
takes it bonâ fide and for valuable consideration (Factors Act
1889; Sale of Goods Act 1893).
Assignment or Transfer of Lien.—A lien being a personal right acquired in respect of personal services, it cannot, as a rule, be assigned or transferred; but here again there are exceptions. The personal representative of the holder of a possessory lien on his decease would probably in all cases be held entitled to it; and it has been held that the lien over a client’s papers remains with the firm of solicitors notwithstanding changes in the constitution of the firm (Gregory v. Cresswell, 14 L.J. Ch. 300). So also where a solicitor, having a lien on documents for his costs, assigned the debt to his bankers with the benefit of the lien, it was held that the bankers might enforce such lien in equity. But though a tradesman has a lien on the property of his customer for his charges for work done upon it, where the property is delivered to him by a servant acting within the scope of his employment, such lien cannot be transferred to the servant, even if he has paid the money himself; and the lien does not exist at all if the servant was acting without authority in delivering the goods, except where (as in the case of a common carrier) he is bound to receive the goods, in which case he retains his lien for the carriage against the rightful owner. Where, however, there is a lien on property of any sort not in possession, a person acquiring the property with knowledge of the lien takes it subject to such lien. This applies to equitable liens, and cannot apply to those common-law liens in which possession is necessary. It is, however, true that by statute certain common-law liens can be transferred, e.g. under the Merchant Shipping Act a master of a ship having a lien upon cargo for his freight can transfer the possession of the cargo to a wharfinger, and with it the lien (Merchant Shipping Act 1894, § 494). In this case, however, though the matter is simplified by the statute, if the wharfinger was constituted the agent or servant of the shipmaster, his possession would be the possession of the shipmaster, and there would be no real transfer of the lien; therefore the common-law doctrine is not altered, only greater facilities for the furtherance of trade are given by the statute, enabling the wharfinger to act in his own name without reference to his principal, who may be at the other side of the world. So also a lien may be retained, notwithstanding that the property passes out of possession, where it has to be deposited in some special place (such as the Custom-House) to comply with the law. Seamen cannot sell or assign or in any way part with their maritime lien for wages (Merchant Shipping Act 1894, § 156), but, nevertheless, with the sanction of the court, a person who pays seamen their wages is entitled to stand in their place and exercise their rights (the Cornelia Henrietta, 1866, L.R. 1 Ad. & Ec. 51).
Waiver.—Any parting with the possession of goods is in general a waiver of the lien upon them; for example, when a factor having a lien on the goods of his principal gives them to a carrier to be carried at the expense of his principal, even if undisclosed, he waives his lien, and has no right to stop the goods in transitu to recover it; so also where a coach-builder who has a lien on a carriage for repairs allows the owner from time to time to take it out for use without expressly reserving his lien, he has waived it, nor has he a lien for the standage of the carriage except by express agreement, as mere standage does not give a possessory lien. It has even been held that where a portion of goods sold as a whole for a lump sum has been taken away and paid for proportionately, the conversion has taken place and the lien for the residue of the unpaid purchase-money has gone (Gurr v. Cuthbert, 1843, 12 L.J. Ex. 309). Again, an acceptance of security for a debt is inconsistent with the existence of a lien, as it substitutes the credit of the owner for the material guarantee of the thing itself, and so acts as a waiver of the lien. For the same reason even an agreement to take security is a waiver of the lien, though the security is not, in fact, given (Alliance Bank v. Broon, 11 L.T. 332).
Sale of Goods under Lien.—At common law the lien only gives a right to retain the goods, and ultimately to sell by legal process, against the owner; but in certain cases a right has been given by statute to sell without the intervention of legal process, such as the right of an innkeeper to sell the goods of his customer for his unpaid account (Innkeepers Act 1878, § 1), the right of a wharfinger to sell goods entrusted to him by a shipowner with a lien upon them for freight, and also for their own charges (Merchant Shipping Act 1894, §§ 497, 498), and of a railway company to sell goods for their charges (Railway Clauses Act 1845, § 97). Property affected by an equitable lien or a maritime lien cannot be sold by the holder of the lien without the interposition of the court to enforce an order, or judgment of the court. In Admiralty cases, where a sale is necessary, no bail having been given and the property being under arrest, the sale is usually made by the marshal in London, but may be elsewhere on the parties concerned showing that a better price is likely to be obtained.
American Law.—In the United States, speaking very generally, the law relating to liens is that of England, but there are some considerable differences occasioned by three principal causes. (1) Some of the Southern States, notably Louisiana, have never adopted the common law of England. When that state became one of the United States of North America it had (and still preserves) its own system of law. In this respect the law is practically identical with the Code Napoleon, which, again speaking generally, substitutes privileges for liens, i.e. gives certain claims a prior right to others against particular property. These privileges being strictissimae interpretationis, cannot be extended by any principle analogous to the English doctrine of equitable liens. (2) Probably in consequence of the United States and the several states composing it having had a more democratic government than Great Britain, in their earlier years at all events, certain liens have been created by statute in several states in the interest of the working classes which have no parallel in Great Britain, e.g. in some states workmen employed in building a house or a ship have a lien upon the building or structure itself for their unpaid wages. This statutory lien partakes rather of the nature of an equitable than of a common-law lien, as the property is not in the possession of the workman, and it may be doubted whether the right thus conferred is more beneficial to the workman than the priority his wages have in bankruptcy proceedings in England. Some of the states have also practically extended the maritime lien to matters over which it was never contended for in England. (3) By the constitution of the United States the admiralty and inter-state jurisdiction is vested in the federal as distinguished from the state courts, and these federal courts have not been liable to have their jurisdiction curtailed by prohibition from courts of common law, as the court of admiralty had in England up to the time of the Judicature Acts; consequently the maritime lien in the United States extends further than it does in England, even after recent enlargements; it covers claims for necessaries and by material men (see Maritime Lien), as well as collision, salvage, wages, bottomry and damage to cargo.
Difficulties connected with lien occasionally arise in the federal courts in admiralty cases, from a conflict on the subject between the municipal law of the state where the court happens to sit and the admiralty law; but as there is no power to prohibit the federal court, its view of the admiralty law based on the civil law prevails. More serious difficulties arise where a federal court has to try inter-state questions, where the two states have different laws on the subject of lien; one for example, like Louisiana, following the civil law, and the other the common law and equitable practice of Great Britain. The question as to which law is to govern in such a case can hardly be said to be decided. “The question whether equitable liens can exist to be enforced in Louisiana by the federal courts, notwithstanding its restrictive law of privileges, is still an open one” (Derris,
