(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "A treatise on the law of liens, common law, statutory, equitable and maritime"

Google 



This is a digital copy of a book lhal w;ls preserved for general ions on library shelves before il was carefully scanned by Google as pari of a project 

to make the world's books discoverable online. 

Il has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one thai was never subject 

to copy right or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 

are our gateways to the past, representing a wealth of history, culture and knowledge that's often dillicull lo discover. 

Marks, notations and other marginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 

publisher lo a library and linally lo you. 

Usage guidelines 

Google is proud lo partner with libraries lo digili/e public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order lo keep providing this resource, we have taken steps to 
prevent abuse by commercial panics, including placing Icchnical restrictions on automated querying. 
We also ask that you: 

+ Make n on -commercial use of the files We designed Google Book Search for use by individuals, and we request thai you use these files for 
personal, non -commercial purposes. 

+ Refrain from automated querying Do not send automated queries of any sort lo Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attribution The Google "watermark" you see on each lile is essential for informing people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use. remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 

countries. Whether a book is slill in copyright varies from country lo country, and we can'l offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liability can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through I lie lull lexl of 1 1 us book on I lie web 
al |_-.:. :.-.-:: / / books . qooqle . com/| 



jipismb, Google 



jipismb, Google 



n :[ „. Google 



jipismb, Google 



jipismb, Google 




jipismb, Google 






31, -..m, C00gle 



jipismb, Google 






jipismb, Google 



jipismb, Google 



jipismb, Google 



jipismb, Google 



Dipismb, Google 



legal t&otfes frg leonaiti 3L. Jones. 



A THEATISTl ON THS LAW OF MOHTO-AGE3 OF PERSONAL 
PBOPBBTY. Fourth Edition, revimud and enlarged. I vol. 8vo, 900 panel 

g Collateral Sc- 

A THBATOB OK TKB LAW OF LIENS. Common Law, Statutory, 
EouiTjtnLb, aso M..mTiMB. New Edition, rcviied and enlarged, 1 volt. 

Thete worki, treating o[ Ihe three fomu of eecurinupoo property, — Mort- 
gages, Pledge*, and Liem, — while aeparately complete, have been prepared 
wilha view 10 the relation! of the mibjecti locach miicr; and each trealiK ccin- 

the tubject of Property Securittea. 

Tobms m o duvet an mmo, and general legal fobms, 

Ur^juTcaKi*™W?ih PiacrttaHtoua. Third Rented Edition. FvoT Svo, 

964 pagei. Price (6.00, ml. 

•.• fiw infa *7 £™ BtmkuUtri. StHt, feit-fm'4, <m rtctifl ef prut ly 

HOUGHTON, MIFFLIN AND COMPANY, 



3igiliz eC by GOOgk 



A TREATISE 



LAW OF LIENS, 

COMMON LAW, STATUTORY, EQUITABLE, 
AND MARITIltE. > 

LEONARD A. JONES. 



SECOND EDITION, REVISED AND ENLARGED. 



IN TWO VOLUMES. 
VOL. I. • 



BOSTON AND NEW YORK: 

HOUGHTON, MIFFLIN AND COMPANY. 

HCIjr KitiersiDe press, CambriBgr. 



i q in. Google 



** .m\.<^ 






: "".'■"" 'fi '/:••'■? :^l ■ 



.■^.vCoogle 



To 

THE MEMORY OF NT FATHER, 

AUGUSTUS APPLETON JONES, 

C6f« Crtattse 

18 AfTXCTIOKATRLT DEDICATED 

Br THE AUTHOR. 



3igitiz eC by GOOgk 



jipismb, Google 



NOTE TO SECOND EDITION. 



The cases coming within the province of this treatise 
decided within the last five years have been incorporated 
into the text and noteB of this edition. Much new mat- 
ter has thus been added ; but by changes in type and size 
of the pages, by omitting spaces between the sections and 
by substituting in some instances references to statutes in 
place of statements of their substance, the size of the vol- 
umes has not been materially increased. 

Important changes and additions have been made in 
that part of the work relating * to Mechanics' Liens. In 
this part alone there are about a hundred pages of new 
matter, and the number of citations added is more than 
twelve hundred. 

In addition to the usual references to the official re- 
ports, references have been made to the Reporters of the 
National Reporter System, and to the American Decisions, 
American Reports, and American State Reports, for cases 
also found in these reports ; thus in many instances giv- 
ing references to two or three reports for the same case. 
Many cases in the Reporters are also referred to which 
have not yet appeared in the official reports. 

L. A. J. 



3igitiz eC by GOOgk 



jipismb, Google 



PREFACE. 



Ten years ago, I published a treatise on the Law of 
Mortgages of Real Property. This was followed by two 
other treatises which were intended to complete the con- 
sideration of the general subject of mortgages, — one 
upon Railroad Mortgages, and the other upon Chattel 
Mortgages. In the Preface to the first edition of the 
latter work, published seven years ago, I said : — 

I hare regarded these yolumes upon different phases of the 
■abject of mortgages as constituting in fact one work covering 
the whole subject; and I have, therefore, referred from one 
treatise to another as freely as I would to other sections of 
tbe same treatise. It is my purpose to follow this method still 
further, in the preparation of two other treatises, —one upon 
Pledges, including Collateral Securities, and one upon Liens, — 
which, with those I have already published, will form a complete 
series of works on Proper Securities. The three forms of 
security upon property — Mortgages, Pledges, and Liens — will 
then be treated in works which are not only separately complete, 
but which will also have reference to the relations of the sub- 
jects to each other. 

The task which I then set for myself I now complete 
in publishing the present work upon Liens. Much hard 
labor — all of it, so far as authorship is concerned, being 
my own personal labor — has gone into these seven vol- 



;y Google 



nines. The favor with which the profession has received 
the works of this series, heretofore published, I attribute 
largely to the fact that I have dealt with the subjects 
at close quarters, so to speak ; that is, I have sought to 
examine the subjects in such detail as to enable me to 
state and discuss all the difficult and doubtful questions 
that have arisen and been passed upon by the courts. 
Many of these might have been hidden or passed by 
under a statement of an elementary principle; but as 
these works were intended for the practising lawyer, 
rather than the student, I have deemed it my province 
to find out the uncertainties in the law, and, if I could, 
to refer them to some principle, or to classify them, and 
at least to state them, if I could do no more. 

The subjects with which these works deal have their 
full share of intricate questions ; and the subject of Liens 
not less than the others. A formidable difficulty in mak- 
ing a satisfactory treatise upon the subject of Liens has 
been encountered in the statutory law which forms so 
important a part of it It is not so much that new liens 
have been created by statute, as that the common law 
liens upon personal property, as well as equitable liens 
upon both personal property and real property, have been 
in many instances modified or enlarged. By statute, more- 
over, maritime liens have been in like manner affected. 
Finally, many liens have been created which had never 
been asserted at law or in equity, or in the admiralty. 
The statutory law is, however, no less important than 
the judicial, to a complete understanding of the subject; 
and, besides, the decisions of the courts are largely based 
upon the statutes, and can be understood only by ref- 



3igitiz eC by GOOgk 



PREFACE. 

erence to them. I have therefore deemed it essential 
to state the statute law, sometimes in the language of 
the statutes, and sometimes briefly and in substance. 
This part of the work has been more difficult than any 
other, 

L. A. J. 

Boaroi, Jum 4, 1888. 



3igitiz eC by GOOgk 



jipismb, Google 



CONTENTS OF VOLUME I. 



CHAPTER I. 

LIENS AT COMMON LAV. 

I. Definition and limitation of the subject .... 1-13 

II. Specific and general liens 14-19 

III. Possession an essential element of liens at law . . . 20-26 

CHAPTER II. 

EQUITABLE LIENS. 

I. Arising by express contracts 27—42 

II. Arising by equitable assignments 43-62 

III. Arising from advances made and money paid . . 63-76 

IV. Arising from agreements to give mortgages or other secu- 

rity 77-83 

V. Arising in favor of creditors and stockholders of corpo- 
rations 84-92 

VI. The enforcement of equitable liens 93-96 

CHAPTER III. 

LIENS BT STATUTE 97-112 

CHAPTER IV. 

AN ATTOBNET'S QENBBAL OB UETAININd LIEN. 

I. Introductory 113, 114 

II. Upon papers and property 115-136 

III. Upon moneys collected 137-152 



;y Google 



CONTENTS OF VOLUME I. 

CHAPTER V. 
is attorney's special or charging lien ON JUDGMENTS. 

I. Definition and origin of the lien .... 153-157 
II. In what States it prevails 158-164 

III. Whether the lien is limiied to taxable costs or inclndea 

fees 165-192 

IV. Rule that there ii no lien until judgment hai been 

entered 193-202 

V. Settlement of suit by the parties before judgment, in 

fraud of the attorney 203-205 

VI. Lien upon the cause of action by agreement or as- 
signment ' . . . 206-208 

VII. When the attorney is required to give notice of his 

lien to the judgment debtor 209-214 

VIII. Whether the attorney's lien is subject to a right of 

set-off in the judgment debtor .... 215-221 
IX. Effect of an assignment of the judgment to the attor- 
ney or to another 222-226 

X. An attorney's lien not defeated by attachment or by 

his client's bankruptcy 227, 228 

XI. An attorney's lien on bis client's land which is the sub- 
ject-matter of the suit 229, 230 

XII. Waiver of an attorney's lien .... 231 

XIII. An attorney's remedies for enforcing his lien . . 232-240 

CHAPTER VI. 
bankers' liens. 

L Nature and extent and the indebtedness secured . 241-256 

II. Application as between corresponding banks . . 257-261 



CHAPTER VTI. 

carriers' liens. 

I. Are specific, not general 262-268 

II. In whose favor they attach 269-280 

III. For what they attach 281-290 

IV. On through freight 291-502 

xii 



3igitiz eC by GOOgk 



CONTENTS OF VOLUME I. 

T. On stolen goods 803 307 

VL Waiver or loss 308-331 

VII. Bemediei 835-371 



CHAPTER VIII. 

LIENS OF CORPORATIONS OK THEIB MEMBERS' SHARES. 

T. How created 375-392 

II. What debts are secured 893-100 

III. Subrogation of sureties to such liens .... 101, 402 

IV. How lost or waived 103-117 



CHAPTER IX. 

LIBIT3 OF TAOTOBS, BROKERS, CONSIGNEES, AMD MERCHANTS. 

L In general 118-125 

II. To what property they attach .... 126-111 

III. What indebtedness is secured 115-152 

IV. For advances on crops 153-158 

V. When the liens attach 159-465 

VI. Waiver and loss of the liens 466-171 

VH. Enforcement of the liens 472-482 

CHAPTER X. 

L1«H OT A FINDER Or LOST GOODS .... 483-497 

CHAPTER XI. 

INNKEEPERS' AND BOARDING-HOUSE KEEPERS' MENS. 

1 To what property it attaches 498-515 

II. What charges are secured 516-518 

HI. Waiver and loss of the lien 519-522 

IV. Enforcement of the lien 523-589 



3igitiz eC by GOOgk 



CONTENTS OF VOLUME L 
CHAPTER XII. 

LANDLORDS' LIENS FOR RENT. 

I. By reservation or contract 540-550 

II. Statutory liens and their priority . . . 551-560 

III. To what property the liens attach .... 561-570 

IV. What rent is secured 571-576 

V. How the liens may be waived or lost . . 577-595 

VI. The remedy of distress, and tbe enforcement of the 

liens 596-601 

VII. Statutory provisions and adjudications nnder the same 

in the several States 602-640 

CHAPTER XIII. 

LIENS OF LIVERf-STABLE KEEPERS AND AGISTORS. 

I. Statutory provisions and their construction . 641-690 

II. Priority as regards chattel mortgages and other liens 

and sales 691-697 

III. Waiver of tbe liens 



CHAPTER XIV. 

LUMBERMEN'S LIENS. 

I. Statutory provisions 702-719 

II. Interpretation and construction .... 720-730 

CHAPTER XV. 

LIENS OF MECHANICS, ARTISANS, AND LABORRRS, UPON PERSONAL 
PROPERTY. 

I. At common law 731-748 

II. By statute 749-775 

HI. Agricultural laborers 776-786 



CHAPTER XVI. 

PARTNERSHIP LIENS 787-799 

xiv 



3igitiz eC by GOOgk 



CONTENTS OP VOLUME I. 

CHAPTER XVII. 

seller's lien for p or chase-money. 

I. Nature and extent of the lien 800-805 

II. Possession essential to its existence . 806-820 

III. What change of possession destroys it . . . 821-840 

XT. When seller estopped by a resale .... 841-849 

V. When lien waved by giving credit .... 850-856 

CHAPTER XVIII. 

THE SELLER'S EIGHT OP STOPPAGE DC TRANSITU. 

I. Its nature and effect 857-868 

II. Who may exercise the right 869-876 

III. Conditions under which the right exists . . . 877-887 

IV. The mode of exercising the right .... 888-901 
V. During what time goods are in transitu . . . 902-945 

VI. How the right is waived or defeated .... 946-966 

CHAPTER XIX. 

WAREHOUSEMEN AND WHARFINGERS" LIENS. 

1. Of warehousemen 967-976 

IL Of wharfingers 977-980 

III. Statutory provisions 981 

CHAPTER XX. 

ASSIGNMENT OP LIENS. 

I. Of common law liens 982-989 

IL Of statutory liens 990 

"III. Of equitable Hens 991, 992 

IV. By subrogation 993-995 



3igitiz eC by GOOgk 



CONTENTS OF VOLUME I!. 
CHAPTER XXI. 

WAIVER OF LIENS. 

I. By voluntary surrender of possession . . 996-1001 

II. By inconsistent agreements as to payment , . 1002-1010 

III. By taking security 1011-1014 

IV. By other inconsistent agreements and claims . 1015-1032 

CHAPTER XXH. 

REMEDIES FOB THE ENFORCEMENT OP LIBNB. 

L At law and in equity 1033-1048 

II. By statute 1049-1060 



CONTENTS OP VOLUME H 

LIENS UPON REAL PBOPEETY, AMD MABTTOIB LIENS. 
CHAPTER XXIIL 

GRANTOR'S OK VENDOR'S IMPLIED LIEN POK PUBCHA8E-MONET. 

I. Nature and extent of the lien 1061-1072 

II. How defeated or waived 1073-1091 

III. Who may enforce the lien 1092-1098 

IV. The remedy 1099-1104 

CHAPTER XXIV. 

THE VENDEE'S IMPLIED LIEN POB PUBCHAB E-MONEY . 1105, 1106 

CHAPTER XXV. 

THE VENDOR'S LIEN BT CONTRACT OR RESERVATION. 

I. Nature and extent of the lien .... 1107-1118 

II. Transfer and enforcement of the lien . . * 1119-1130 



3igitiz eC by GOOgk 



CONTENTS OF VOLUME II. 
CHAPTER XXVI. 

IMP ROTE ME NT LIENS OF OCCUPANTS. 

I. At common law and in equity .... 1131—1139 
II. By statute 1140-1146 

CHAPTER XXVII. 

IMPROVEMENT LIENS Or JOINT TENANTS, TENANTS IN COMMON, AND 
TENANTS FOB LIFE OR FOB TEARS. 

I. Of joint tenants and tenants in common . . 1147-1158 
II. Of tenants for life and for years .... 1159-1162 

CHAPTER XXVni. 

LIENS ARISING T7NDER DEVISES 1163-1174 

CHAPTER XXIX. 

LKNS ARISING UNDER TRUSTS 1175-1183 



CHAPTER XXX. 

MJICHANIC9' LIENS : STATUTOHT PROVISIONS, WITH ANNOTA- 
TIONS 1184-123$ 



CHAPTER XXXI. 

MECHANICS' LIENS: CONTRACT OK CONSENT OF OWNER. 

I. The owner's contract or consent in general . . 1234-1259 

IL, Contract or consent of a married woman . 1260-1271 

III. Contract or consent of a lessor or lessee . . . 1272-1282 

CHAPTER XXXII. 

mechanics' liens of sub-contractors. 

I. In general 1283-1285 

II. By subrogation through notice to owner . . 1286-1303 



ioogle 



CONTENTS OF YOLUHE II. 



III. Direct and absolute lien upon the property . . 1304-1306 

IV. Application of payments 1307-1309 



CHAPTER XXXIIL 

mechanics' liens : for what labor and materials given. 

I. In General 1309 a-1309 d 

II. On two or more buildings 1310-1322 

III. When contracts or accounts are mingled . . . 1323 

IV. For work done away from the premises . . 1324 
V. For materials furnished 1325-1334 

VI. For fixtures to the realty 1335-1351 

VII. Things not connected with the realty, or improvements 

upon 1352-1860 

VIII. Artisans and mechanics entitled to liens . . 1361-1367 



CHAPTER XXXIV. 

mechanics' liens: what property is subject to. 

I. Land subject to 1368-1372 

II. Building alone subject to 1373, 1374 

III. Property exempt on grounds of public policy . . 1375-1381 

IV. Homestead estates 1382,1383 

V. Fixtures to the realty 1384-1388 



CHAPTER XXXV. 

mechanics' liens: the claim, 

I. The claim in general 1389-1396 

II. Name of the owner 1397-1403 

HI. Statement of amount and particulars of claim . 1404—1420 

IV. Description of the land upon which a lien is claimed 1421-1426 

V. Time limited for filing the lien .... 1427-1450 

VI. Verification of the cluim or demand of lien . . 1451-1454 

VII, Amendments of the claim after it is filed. . . 1455,1456 
xviii 



3igitiz eC by GOOgk 



CONTENTS OP VOLUME II. 
CHAPTER XXXVI. 

MECHANICS' LIENS : PRIORITY AS 11EGARDS MORTGAGES AND OTHER 
INCUMBRANCES AND LIENS. 

I. Ab regards mortgages 1457-1486 

II. As regards vendors' liens 1487 

III. As regards other incumbrances .... 1488-1491 

IV. As between different lienors 1492 



CHAPTER XXXVII. 
MECHANICS' liens : 



CHAPTER XXXVIII. 

MECHANICS' LIENS : WAITER AND LOSS OF. 

I. Br agreement or estoppel 1500-1511 

II. By abandoning the contract ..... 1512—1518 

HI. By taking security 1519-1531 

IV. By taking the debtor's promissory notes . . . 1532-1537 

V. By destruction of (he building or improvement . 1538-1541 

VI. By subsequent conveyance 1542-1545 

VII. By the bankruptcy or insolvency of the debtor . 1546-1550 
VIII. By bar of debt under the statute of limitations . 1551 

IX, By a personal judgment ...... 1552 



CHAPTER XXXIX. 

MECHANICS' LIENS : PROCEEDINGS TO ENFORCE. 

L Introductory 1553 

II- General rules of con struct ion .... 1554-1558 

III. Nature of soil to enforce the lien .... 1559-1561 

IV. Commencement of suit and service . . . 1562-1566 
V. Parties to the suit 1567-1586 

VI. Pleadings and practice 1587-1607 

VII. Judgment and sale 1608-1617 

zix 



3igitiz eC by GOOgk 



CONTENTS OF VOLUME U. 
CHAPTER XL. 

LIEK8 OF MKCHASIC8 AND OTHKK8 TIPON RAILROADS. 

I. Application of mechanics' lien lawn to railroads . 1616-1627 

IT. Special lien laws applicable to railroads . . . 1628-1633 

III. Statutes of the several States giving liens upon rail- 

roads 1684-1673 

IV. Vendors' lien 1674 

V. Judgment lien 1675 

CHAPTER XLL 

MARITIME LIENS. 

p. Definition and characteristics 1676-1678 

II. Liens in home and foreign porta .... 1679-1692 

III. What supplies and advances create maritime liens 1693-1699 

IV. What services are maritime and create liens . . 1700-1720 
V. Construction and home port liens under statutes . 1721-1767 

VI. Liens for damages arising from torts . . . 1768-1771 
VII. Priorities 1772-1796 

VIII. Assignment 1797, 1798 

IX. Waiver and loss 1799-1812 



3igitiz eC by GOOgk 



TABLE OF CASES. 



Co. 



87 



Abbott v. Abbott 

v. Nash 1516 

Abel v. Potts S19 

AberamsD Iron Works v. Wick- 
en* 1106 
Abererombie r. Ely 1375 
Aberoatby v. Rots 1068 
Abbam v. Boyd 1SOS, 1584 
Ablet. Lee 115, 137, 159 
Abraham p. Agnew 719 a 
v. Carter B42 
r. Hall 603 
e. Nicrosi 602 
Ackennan v. Ackennan 1S8, 189, 209 
Acme, The 1808 
Acorn, The 1700 
Acquackanonk Water Co. v. Man- 
hattan L. In*. Co. 1489 
Acton d. Waddington 1061, 1062, 
10S3, 1063, 1074, 1083, 
1092, 1098, 1099 
Ad. Hine, The, r. Trevor 1725 
A. D. Patchin, The 1798 
Adair ». Adah- 1123 
Adams r. Adams 1243 
v. Buchanan 1076, 1081, 1086 
v. Buhler 1200, 1S89 
v. Clark 266, 281 
v. Cowherd 1116, 1119 
v. Fox 166, L84, 232, 235 
v. Goodrich 781 
■>. Gorham 825 
v. Hobbs 656 
v. Island City 1718 
v. La Comb 569, 682 
v. Lee 220, 236 
v. Phillips 1685 
tr. Russell 1109, 1487 
v. Shalt r 1200 
Aderhold v. Bluthenthal 576 a, 603 



Adgerc. Priogle 1098 

Adler fi. World's Pastime Exposi- 
tion Co. 1199, 1367, 1412 
Admiral, The 1799 
Adsit v. Hall 186 
Aeronaut, The 1690, 1691 
Mtr.3. Nat Bank v. Fourth Mat. 

Bank 57 

Agee v. Mayer 603 

Ague* Barton, The 1687, 1808 

Agnew v. McGill 1102 

Aguirre o. Parmelee 902, 922, 965 
Ahem p. Boyce 1513 a 

v. Evans 1644 

Abrend v. Odiorne 1062, 1063 

Aikin v. Watson 725, 1629, 1645 

Aina, The 1699 

Ainia v. Avres 878 

Ainelev v. Mead 1265 

Ainelie v. Eohn 1304 a, 1406, 1453 
Aina worth o. Atkinson 1589 

A itches on v. Endless Chain 

Dredge 1677, 1696 

Aitkin, in re 150 

Akennan v. Humphrey 958 

Aker* v. Luae ' 1088, 1090 

Alabama, The 1677, 180B 

Alabaman. Stanton 1117 

Alanson Sumner, The 1700, 1732, 

1756 
Albany, The 1682 

Albert Palmer Co. v. Tan Orden 

185, 189, 210 

Albion, The 1778 

Albrecht f. Foster Lumber Co. 1800, 

1405, 1412, 1413, 1559 

Albright v. Mills 603 

v. Smith 1219 a, 1304, 1305, 

1441 

Alden c. Carver 970 

Alderman t>. Nelson 174 

Alderaon, ex parte 45, 47 

Aldricb v. Cooper 953 

Aldridge v. Dunn 1074, 1081, 1098 

Aleck p. Jackson 1594 



3igitiz eC by GOOgk 



TABLE OF CASES. 



Reference to Sections. 



Alexander v. Barry 69 

v. Ellison 1091, 1141 

v. Hooks 1072 

v. Pardue 542 

V. Slavers IS 04 

Alford ■>. Wilson 1102, 1103 

Alice Tainter, The 
Alida, The 1728 

Aline, The 1781 

Alkyns v. Amber 4 7 

Allan o. Gripper 940, 942 

Allegheny National Bank's Ap- 
peal 1158 
Allen v. Agnew 627 
v. Beniiet 1064 
v. Center Valley Co. 788, 789 
v. Frumet M. & S. Co. 1211, 

1408, 1412, 1431, 1436, 
1437, 1494, 1597 
r. Griasom 789, 7S1 

n. Jones 800 

v. Loring 1081 

». Mack ay 1769 

v. Maury 826 

o. Megguire 23 

o. Montgomery 69 

v. Newberry 1780 

i). Ogden 972 

v. Rowe 1255 

v. Sales 1254, 1276, 1542 

v. Shortridge 68 

v. Smith 621 

v. Spencer 22, 24 

Alley v. Lanier 1225, 1272 

Allgood v. Merrybent k D. By. 

Co. 1674 

Allis v. Meadow Spring Distilling 

Co. 1232, 1520, 1569 

Allison v. Bristol Marine Ins. Co. 326 
Altaian v. Corban 1335 

Allred p. Haile 781, 1053, 1198 

Alsager p. St. Katlicrine's Douk 



Co. 



322 

927, 940 



Alsberg v. I.atta 

Alston 1-. Wilson 611 

Alt v. Weidenberg 687, SG8 

Althause v. Warren 1532, 1536, 1608, 

Alihen p. Tarbox 1262 

Altieri v. Lyon 1643 

Alvuy t>. Reed 1239 

Alvord i: Davenport 524 

t\ Hendrie 1212, 1433 

Alwooil r. Mansfield 613 

Ambrose Manuf. Co. v. Gapen 1211, 

1283 

America, The 1776, 1781 a 

xxii 



American Eagle, The 1798 

American F. Ins. Co. v. Pringle 1439, 

1470,1472, 1475 

American Ins. Co. v. Coster 1800 

Ames v. Birkenhead Docks 1675 

v. Dyer 1367 

t>. Palmer 262, 304, 307 

Amherst College v. Smith 1170 

Amidon v. Benjamin 1397, 1899, 1542 

Amory v. Flyn 485 

P. Reilly 1107 

Amos D. Carver, The 1773, 1781 a 

Amos v. Clare 1282 

Amstel, The 1713 

Ancaster v. Mayer 1165 

Anders r. Blount 571 

Anderson's Appeal 571 

Anderson v. Armstead 1264 

v. Beard 455 

p. Boswortb 138, 150 

v. Davison 1164 

v. Griffith 1086 

p. Huff' 1286 

i>. Jacksonville, P. & M. 

R. K. Co. 1674 

v. Mather 1265 

v. Mississippi 98 

v. Read 823 

v. Sessions 228 

v. Volmer 1211 

Anderson Lumber Co. v. Fried- 
lander 1216 
Andrew v. Stewart 568, 611 
Andrews v. Brown 799 
v. Burdick 1287, 1289, 1290, 
1291, 1541 
v. Crandell 661 
p. Hobgood 1092 
p. Key 1101 
v. Mann 791 
v. Morse 158, 167, 201a, 
209,217 
v. St. Louis Tunnel Ry. 

Co. 1655 

v. Scotton 1074 

v. Wade 1013 

Andrus v. Coleman 1074 

Angela Maria, '1'he 1791, 1792 

Angell p. Bennett 206 

Anglo- California Bank v. Gran- 
gers' Bank 381 
Angus p. McLachlan 622, 524, 1011 
Anketel v. Converse 1063, 1080 
Ann C. Pratt, The 1810 
Anne, The 277 
Annis v. Gil more 711, 728 



3igitiz eC by GOOgk 



TABLE OF CASES. 



Reference to Sections. 



Antelope, The 1705 

Ansley v. Pasahro 1063, 1458 

Apollo, The 1697 a 

Apperson p. Farell 1470 

Appleman p. Myre 729 

A. R. Dunlap, The 1699, 1713 

Anita p. Tellurium Gold & S. M. 

Co. 1401, 1454 

Arbnckle v. HI. Mid. Ry. Co. 1644 

P. Nulnis 625 

Archer r. McMechan 418, 426 

Archibald v. Citizens' Bank of 

Louisiana 1751 

Arctic, The 1756, 1773, 1779 

Arcturus, The 1676, 1706, 1776, 

1799, 1802 

Arijins P. Brickley 702, 703, 719, 731 

Arkansas, The 1770 

Arkansas Cent. R. R. Co. v. Mc- 
Kay 1589 
Arlin p. Brown 1063, 1071 
Armentrout v. Gibbons 1111 
Armitage v. Mace 673, 685, 688 
Armstrong v. Chemical Nat. Bank 251 
v. Ilallowell 1389 
v. Jackson 1144, 1145 
v. Nichols 1262 
c Walker 636 
Arnold r. Badloog 1325 
v. Coburn 1125 
v. Delano 800, 802, 808, 821, 
828, 850, 852, 853, 661, 948 
r. Morris 36 
P.Patrick 1079 
p. Spun- 1254 
v. Suffolk Bank 376, 377, '398 
Artaza p. Smallpiece 310 
Arthur v. Schooner Cassius 284, 338 
c. Sylvester 12S 
Artisan, The 1704, 1799 
Asa* it. Sparr 614 
Ascher p. Grand Trunk Ry. Co. 

892, 931 
Ash p. Putnam 866 

Ashbrook v. Roberts 1063 

Asbdown v. Woods 1535 

Aspinwatl v. Pickford 265 

Associates v. Davison 1216, 1248, 

1262 
Atascosa Co. v. Angus 1375 

Atchison, T. & Santa Fe R. R. 

Co. p. Cuthbert 1647 

Atchison, T. & Santa F^ R. R. 

Co. p. McConnell 1647 

Athenian, The 1779, 1787, 1788, 1802 
Atkin p. Barwick 865 

Atkins o. Byrnes 585, 586 



Atkins p. Colby 857, 878, 902, 921 
p. Little 1235, 1257, L334 

v. Wabash, St. I- & P. Ry. 



Co. 



87 



o. Womeldorf 

Atkinson v. Lindsey 1091 

p. Shoemaker 1318 

Atlantic, The 1677,1700,1704,1706, 

1799 

Atlantic Works o. The Glide 1 729, 

1748 

Atlas, The 1706 

Attorney, in re 135, 146 

Attorney-Geu. v. Baliol College 

1136, 1137 
». Continental L. 

Ins. Co. 67 

p. N. A. L. Ins. 



Co. 



240 



Atwater v. Mower 
Atwood d. Vincent 1063 

p. Williams 1304 

Audenreid p. Randall 802, 946 

Auditor f. Ballard 490 

Augustine Kobbe, The, 1699, 1713, 
1781 
Aurora, The 1679 

Aurora Nat. Bank v. Black 758 

Au Sable River Boom Co. p. 

Sanborn 1000, 1009, 1048, 1537 

Austen v. Halsey 1090 

Austin & N. W. Ry. Co. p. Dan- 
iels 1495, 1668 
Austin & N. W. Ry. Co.i>. Rucker 

1630, 1668 
Austin & St. Louis R. R. Co. v. 

McCaoehey 1495 

Austin v. Munro 1243 

p. Seligroan 789 

v. Wohler 1199, 1245, 1469 

Autrey p. Whifnore 1083 

Averill p. Longfellow 193 

Avery p. Clark 1087, 1092, 1332, 

1458, 1480 

p. Hackley 1020 

Ayersu. Duprey 1081 

Ayres 0. Johnson 628 

p. Revere 1184, 1216,1554, 

1572 



Bahbr. Reed 1240, 1362 

Babbitt p. Condon 1216, 1258 

Babcock v. Bonnell 857, S61, 862 

Babka v. Eldred 719, 726 



* Google 



TABLE OF CASES. 



Reference to Sections. 



Bachman, in re 877, 993 

Bacon 0. Howell 55G 

Badger Lamber Co. v. Marion 

Water-Supply, &c. Co. 1341, 1344, 

1878 

Baeder v. Cnrnie 1755 

Bags of Linseed 270, 308, 810, 311, 

315, 17S0 

Bagwell v. Jamison G98 

Bailey, in re 183, 220, 228, 1164 

Bailey v. Adams 1002 

v. Culver we] I 875 

v. Davis 689 

p. Finch 250 

w. Hudson River R. R. Co. 61 

v. Hull 1608 

v. Johnson 1543, 1588, 1589, 

1594 

v. Mason 1558 

v. Quick 620 

v. Quint 745, 997 

v. Smock 1119 

v. Tinds.ll 1079, 1081 

0. Welch 96 

v. Wright 571, 585 

Bailey Const Co. v. Purcell 1559 

Bain n. Clark e02 

Baird v. Peall ngo 

Baizley v. The Odorilla 1722, 1722 a 

1724, 1760 

Baker's Appeal 789, 790, 791 

Baker v. Com p ton 1107, 1110 

»• Cook 155, 162 

v. Dewey 811, 850 

u. Fensenden 1023, 1322, 1S39 

v. Fuller 462 

v. Hc*E 484,487 

v. St. Quintin 234 

v. Slratton fl07 

v. Winter 1206 

v. Young 1103 

Bakes u. Gilbert 1090 

Balch v. N. Y. & O. M. R R. 

725, 1629, 1662 
0. Symes 121, 126, 128, 1011 
Baldwin v. The Bradish Johnson 

1793 a 

v. Merrick 1343 

v. Whaley 112s 

Bailie, The ' i?06 a 

Ball v. Hill toss, 10D9 

Ballard v. Burgett 820 

v. Carter 1101, 1125 

Ballew v. Rolur 1093 

Ballinger v. Tarbell 222 

Ballon v. Black 1213, 1304, 1304 a, 

1436 



Balabangh v. Prater 145, 191 

Baltimore & Ohio R. R. Co. v. 

Trimble 1067, 1099, 1158 

Bancroft v. Cosby 1032, 1096 

Bangor 11. Goding 103 

Bangs d. Berg 1392, 1407 

Bank's Appeal 781 

Bank 0. Bark Jane 1745 

v. Bradley 1068, 1098, 1110, 

lilt 

f. Donaldson 1163 

v. Jones 418 

0. Lanier 384 

Bank of America v. McNeil 376, 404, 

405, 410 

Bank of Attica v. Manufacturers' 

& Traders' Bank 311 

Bank of Charleston v, Curtisa 

1313, 1350, 1369, 1413, 1411 
Bank of Hamilton v. Dudley 1145 

Bank of Holly Springs v. Pinson 

375, 377, 318 
Bank of Kentucky v. Herndon 788, 
789, 792 
Bank of Metropolis v. New Eng- 
land Bank 257, 260 
Bank of Pennsylvania v. Gries 1367 
Bank of Republic p. Millard 57 
Bank of Rochester v. Jones 

62, 465 
Bank of the United States v. 

Macalester 251 

Bank of Utica v. Smalley 388 

Bank of Washington v. Nock 38, 

253 

Bankhead v. Owen 1076, 1092, 1095 

1107,1108 

Banking Co. v. Lewis 1487 

Banner, ex parte 869 

Barber v. Marble 547 

v. Reynolds 1413, 1481, 1491, 

1614 

Barclay's Appeal 1392 

Barclay v. Wainwright 1222, 1282, 

1330, 1523 

Barcliffv. Lillie 1076 

Bardwell ti. Anderson 1418 

Barilari v. Ferrea 1441 

Barker v. Berry 1235, 1262 

v. Brown 284, 969 

v. Havens 262 

u. Maxwell isio 

v. Prentiss 260 

v. St. Quintin 165, 137, 234 

v. Smart 1099 

Barlow p. Delany 1071 

Barnard v. Campbell B4J 



3igitiz eC by GOOgk 



TABLE OF CASES. 



Reference to Section*. 



Barnard p. McKemie 1191, 1856, 
1551, 1614 
p. Norwich & Worcester 

E. R. Co. 42 

t>. Wheeler 329 

Barnes' Appeal 559, 633 

Barnei ex parte 602 

Barnes p. Berry 126!, 1263 

('."Fisher 1548 

p. Freeland 867 

r. Newcomb 139 

v. Taylor 158, 204, 209, 234, 

235 

Barnesley v. Powell 229 

Burnett v. Brandio 244, 24B, 256, 

418 

p. Griffith 1459 

r. Mason 5, 818 

p. Salyers 1063, 1099 

Birr p. Logan 800 

Barrett r. Goddard 933, 94* 

p. Lewis 1061, 1070 

*. Fritchard 820 

Barrow, ex parte 936, 942 

Barrow p. Coles 820 

Barrows p. Baughman 1519, 1524, 

Barry p. Bomnger 420 

r. Longniore 447 

BarWow p. McLachlan 1550 

v. Robinson 1609, 1696, 

t> , „ 1728,1748 

Hartle p. Gilman 187 

Bartlett p. LVew 84 

v. Loundes 555 

p. Sullivan SI3 

Hartley p. Smith 1216, 1585 

Bsrto's Appeal 1260,1262 

Marton p. Herman 1613, 1614 

865, 875, 

924 



Bartram p. Farebrotber 



p. N. T. Ins. Co. 
p. Santa Barbara 



.190, 1286, 
1376, 1613, 1616 
Batesville Institute v. Kauffman 
Batre p. Auze 
Battle p. McArthur 
Banm r, Covert 



513,514 

1272, 1276, 1384 

603 

1136, 1149 

620 

47ft 

1061, 1076, 1086 



Bisham p. Toors 1189, 1306, 1438, 

1440 

Baihor p. Nordyke Co. 1520 

Bawt>. Upton 970 

BatsettP. Baird 154 7 

p. Brewer 1408,1449, 1452 

p. Menage I486, 1579 

».Swarts 1470,1472,1511 

Bawkor b. Balto. & Ohio R. R. 

Co. 1206, 1337, 1623 a 

p.Kilboarn 1307, 1422 

Batcjielder, M re 8 I3, 829, 852 

Bitchelder e. Rand 1313, 1317 

one. v. Childeri ]«i 10GS, 1092, 

1103 

r. Emery 1726 



1101 
1666 
,-. „ ( ,»- rl 1341, 1887 

p. Griesby 1074, 1083, 108S, 
1087, 1092 
Baumann p. Post 971, 9" 

Bawtree e. Watson 216 

Baxter p. Bush 548,1110 

v. Hutching 1288, 1245 

v. Sister* of Charity 120* 

Bay v. Pope 1141 

Bayard p. McGraw 1524, 1532, 1580 
Bayer p. Reeside 1407 

Bayley v. Greenleaf 1063, 1065, 1076, 
1 J 1081 

p. Merrill 
Baylies p. Sines 
Bailey p. Seerunt 
Bazemore 0. Davis 
Bazin p. Segura 
Beadles p. Hartmna 
Beal p. Harrington *»«>, ■ «■«. 
Beall o. Butler , 6 " 

White 104, 555, 576 a, 592, 
609, 74* 
Beal* ». Congregation B'nai 

Jeshurun 1M0 « "VSi 

Beam v. Blanton A V 

v. Methodist Epis- Church g 

Bean .. Bolton 984, 987. 1019 

tf. Brown »«» 

;-Sft "•.'» 

Bear v. Burlington, C. R. & M. R. 

Co - ,114 

v. "WhiBler 
Beardsley v. Chapman 
1 Beams, »n re 
Beasley v. Webster 
Beattie v. D'ui-inson 
Beatty v. Parker 
Beck v. Birdsall 
v . Tarrant 
v. V enable 
Iieck.e.1 v. Pciticrew 



1142. 

931,933, 962 

1199 

1109 

1252, 1344 

1161 

1093, 1099 

54 1 

1308, 1321*. 

1334 



921, 
241, 



Becker p- Hrfg«*» 
Becfcwith «. Union Bank - - 

Beech t> Canaan 



3igitiz eC by GOOgle 



TABLE OF CASES. 
Reference to Sections. 



Beehler e. Ijams 1272, 1460 

Beekman v. Lansing 590 

Beers v. Knapp 1335 

Beioecke v. The Secret 1682, 1689, 

1690 

Betanger tr. Kersey 1199, 1564, 1587 

Belcher v. Capper 272 

o. Gnmsley 631 

Belding p. Cushing 1373 

Belfast, The 1681, 1686, 1724, 1729 

Bell's Appeal 1585 

Bell v. Allen 603 

o. Barnet 1134 

ii. Hurst 454, 603 

v. McDuffie 1107 

V. Matlien y 606 

v. Moss 875, 878, 888, 894 

v. New York 1376 

v. Rsdcliu" 453 

V. Teague 1187 

v. Vanderbilt 1875, 1376 
Bement v. Trenton Locomotive 



Co. 



1216 



Benares, The 

Benedict v. Danbury & Norwalk 

R. R. Co. 1289, 1639 

o. Field 803 

v. Hood 1222 

». Schaettle 837, 861, 884, 

885, 887, 965 

Bengal, The 1810 

Benjamin v. Benjamin 158, 217, 222 

Bennett v. Akin 1168, 1167, 1168 

v. Gray 708, 1044 

v. Shackford 1S24 

v. Shipley 1061, 1063, 1067 

Bennitt v. Wilmington Star M. 

Co. 1580, 1585 

Benny t>. Rhodes 478 

Benson v. Mole 1031 

Bent i7. Barnett 1239 

Bentley u. Davidson 1559 

Berkey Furniture Co. tr. Sherman 

Hotel Co. 554, 557 

Berkshire Woollen Co. d. Proctor 511 

Bernal v. Pirn 820 

Barnavs v. Feilil 606, 1095, 1096 

Bemd'ston v. Strang 862, 902, 909, 

953 

Berrie v. Hoiritt 229 

Berry v. Boggess 1109 

t. Van Winkle 1161 

Best o. Baumgardner 1222 

Bertheolet n. Parker 1390, 1689, 

1691 

Bethell r. Chicago Lumber Co. 

1262, 1452 

rxvi 



Bettao. Gibbons 837, 962 

Be van, in re 136 

Bevan v. Crooks 564 

v. Thicken 1260, 1892 

v. Waters 641, 644, 731 

Bewick v. Muir 1190 

Beye p. Fenstermacher 571 

B. F. Woolsey, The 1723, 1729, 

1798 

Bibbo. Prather 1105 

Bibend v. Liverpool tt London F. 

St L. Ins. Co. 42 

Bickford v. Ellis 232 

Bieknell ». Trickey 711, 1205 

Biddle v. Biddle 608 

Bierce v. Red Bluff Hotel Co. 891 

Biesenbach v. Key 638 

Bigelow, in re 384, 398 

Bigelow u. Doying 1218 

v. Heaton 308, 317, 701 

Biggs v. Barry 921 

v. Clapp 1299 

v. Piper 66S 

Bills o. Mason 1119 

Bingham .v. Vandegrift 557 

Binns v. Pigot 502, 504 

Binstead v. Bock 483 

Bird v. Anderson 627 

v. Brown 875, 876, 885, 928 

o. Georgia R. R. 291, 292, 293 

Bird of Paradise, The 262, 270, 322, 

324, 327, 1720, 1808 

Bird sail v. Cropsey 1108 

Birley v. Gladstone SI 

Birmingham iron Foundry o. Glen 

Cove Co. ' 1557 

Birney v. Whealon 507 

Bischolf v. Trenholm 634 

Bishop v, Garcia 209, 222 

v. Globe Co. 388, 390, 405 

v. Honey 1381 

t7. Snell 1086 

v, Shi Hi to 820 

Bissel v. Price 289, 802 

Bissell 17. Lewis 1201, 1264, 1423, 

1519, 1528 

v. Pearce 8, 641, 691, 744 

Bizzell v. NU 1099, 1123 

Black t>. Appolonio 1408, 1413, 

1556 

v. Black 236 

v. Brennan 498, 499, 504, 

1041 

o. Rose 313, 319 

Blackburn v. Gregson 1061, 1062 

Blackman v. Marsicano 1190 

v. Pierce 917, 921, 965, 973 



3igitiz eC by GOOgk 



TABLE OF OASES. 



Reference to Section b. 



Black shear p. Burke 811 

Elaine v. The Carter 1801 

Blair ii. Lanning 171 

r. Marsh 1119 

e. St. Louis, &c. R. R. 

Co. 86 

e. St. Louis, H. & K. R. 

Co. 1655 

p. Walker 1655 

Bllisdellr. Smith HID, 1119 

Blake v. Nicholson 731, 740, 743, 974, 
1002 
v. Pitcher 1256,1827, 1532 

Blakeley p. Moshier 1539, 1537 

Blakey p. Blakey 1365, 1629 

v. Dinsdale 911 

Blanehard p. Raines 597, 610 

p. The Martha Wash- 
ington 1681 
Blanche v. Bradford 562 
Btauvelt v. Tan Winkle 117! 
v. Wood worth 1542 
B leaden v. Hancock 743 
Bledsoe o. Mitchell 580 
Blessing v. Miller 1222 
Blevins p. Rogers 1092 
Bligh v. Davies 466 
Bliss p. Patten 1223, 1253, 1260, 
1262, 1263 
Block ». Latham 587, 638, 1045 
p*. Murray 1274, 1276 

Blohm, The 1100 

Bloom p. McGehee 989 

p. Morgan 743 a 

Bloom ingdale v. Memphis & 

Charleston R. R. Co. 884, 888, 891, 

895, 897 

Blossom v. Champion 857, 946 

Bloxatn v. Morley 802 

v. Sanders 800, 802, 832, 850 

Blum p. Jones 603 

p. Marks 859, 887, 927, 965 

Blum en thul o. Anderson 238 

Blythe p. Poultney 1287, 1299, 1512 

Board 0. Wilson 1069, 1092 

Board of Education p. Du parquet 1498 

Board of Education p. Greene- 

baum 1375 

Board of Education p. Neidenber- 

ger 1375 

Board of Education p. Scoville 1202, 
1375 
Board of Supervisors 11. Gillen 1375 
Boardman p. Sill 973, 1018, 1019 

Bob Connell, The 1717 

Bock V. Gorrison 427 

Bodenham v. Hoskyna 248 



Bodey r. Tbacbara 1260, 1262, 1263 
Bodley v. Denmead 1351, 153S 

Bogart v. The John Jay 1 793 a, 1 794 
Boggs p. Martin 262, 320, 331 

p. Price 576 a 

Bohanan p. Peterson 151 

Bohannon 0. Hammond 1723 

Bohem v. Seabury 1513a, 1568 

Bobmer v. City Bank of Rich- 
mond " 879,388,413 
Bobn v. McCarthy 1235, 1304 
Bonn Manuf. Co. p. Hynes 800, 821, 

Bohtlingk p. Inglis 323, 659, 878, 

882, 887, 693, 922 

Bold Buccleugb, The 1777 

Bolin p. Huffnagle 910, 911, 912 

Boling 0. Howell 1063 

Bolivar, The 1803 

Bolland v. Bygrave 241. 245 

Bolton's Appeal 1434 

Bolton v. Duncan 565 

p. Hey 1502 

p. Lancashire & Yorkshire 

Ry. Co. 834, 923, 925, 

940 

p. Puller 241 

Bombay, The 1690 

Bombeck v. Devorss 1211, 1574 

Bond p. Kent 1080 

p. Mayor, &c. 1487 

Bonnell p. Holt 1092 

Bonsall p. Comly 632 

v. Taylor 1532 

Boon p. Murphy 1086, 1089 

Boone p. Harden 631 

Boos p. Ewin 1080 

Booth p. Oliver 544 

v. Pendola 1190, 1312, 1314, 

1669 

Borden p. Croak 542 

Borate. Corey 1099 

Boston, The 1798, 1801 

Boston v. Chesapeake & Ohio R. 

R. Co. 1229, 1618, 1619 

Boston & Colorado Smelting Co. 

p. Pies* 209,211, 222 

Boswell v. Carlisle 454 

Bosworlh p. Tallman 217 

Boteler p. Espen 1277, 1278 

Botsford v. Burr 1178 

p. New Haven, Middle- 
town & Willimantic 
R. R. Co. 1618, 1689 
Bottomly 0. Grace Church 1327, 1328, 
1590 
Bottorf v. Conner 1 100 

rrvii 



;y Google 



TABLE OF OASES. 



Reference to Sections. 



Bourcier v. Edmondson 638 

Boarget p. Donaldson 1301 

Bourgette v. Williams 712, 1558 

Boutner v. Kent 1329 

Bouton v. McDonongb. Co. 1375, 1614 

Bovard v. The Mayflower 1760 

Bowen v. Aubrey 1287, 1289, 1502 

v. Burk 806 

v. Fisher 1100 

Bowes v. N. Y. Christian Home 1218, 

1564 

Bowles's Case 1147 

Bowles r. Rogers 1082 

Bowlio o. Pearson 1092 

Bowling o. Garrett 1484 

v. Scales 235 

Bowling Green Savings Bank v. 

Todd 115, 127, 180, 137, 140 

Bowman t>. Faw 1081 

v. Hilton 262, 289, 302 

v. Smiley 632 

r. Spalding 791 

Bowman Lumber Co. p. Newton 

1311,1312,1317 

Bowser v. Scott 572 

Boyce v. Stanton 1117 

Boyd u. Blake 1247, 1248, 1259, 

1369, 1604 a 

v. Jackson 1083, 1098 

v. Jones 1178 

b. McLean 1178 

it. Martin 1069 

o. Mole 1S29, 1331 

v. Moselv 806, 821, 965 

Buyer p. Austin 1086 

v. Clark 183, 220 

Boylan v. The Victory 1436, 1729 

Boyle v. Boyle 201 a 

o. Robbini 1219 

Boynton v. Braley 1028 

o. Cbamplin 1063, 1086 

v. Libby 820 

Boynton Furnace Co. v. Gilbert 1289 

Bozeman o. Ivey 1116 

Bozon i>. Holland 127, 132, 149, 153, 

166 

Brabazon o. Allen 1313 

Brace v. Marlborough 10 

Brackenbridge v. Millar 557 

Bradbury v. Butter 1559 

Bradcen v. Brooks 818 

Braden s. Ward 158, 204, 209 

Bradford v. Doraey 1190 

v. Harper 1068, 1074, 1116 

v. Howe 1116 

v. Marvin 1063,1089 

o. Peterson 1263, 1264 

xiyiii 



Bradford v. Underwood Lumber 

Co. 719 a 

Bradford Banking Co. t>. Briggs 389, 

404 

Bradish ■> James 1421, 1423 

Bradish Johnson, The 1794 

Bradley v. Bosley 1100 

v. Curtis 1069, 1116, 1119 

-j. Michael BOO 

v. Piggot 369 

v. Richmond 154 a 

v. Root 45, 47 

p. Simpson 1199 

v. Spofeord 982, 987, 1035 

Bradsh&w v. Warner 820 

Bradttt. Koon 219, 223 

Brady e. Anderson 1519, 1532, 1554, 

1555 

Brainard v. Burton 548 

v. El wood 175 

Bremen. Swain 1128 

Branch u. Galloway 467 

Brandan ■>. Allard 216 

BrandSo v. Barnett 241, 242, 244, 

255, 427 

Brander ■>. Phillips 475, 476, 477 

Brandt t>. Bowlby 820 

p. Verdon 1411 

Brsnin v. Conn. & Passumpsic 

Rivers R. R. Co. , 1670 

Brentford City, The 1791 

Branth v. Branth 168, 209 

Bratt o. Bratt 1069 

Brawley v. Catron 1071, 1077 

Bray v. Smith 1245, 1264 

v. Wise 699 

Breene v. Merchants' & M. Bank 84 

Bremen o. Foreman 1188,1247,1257, 

1608 

Brenan t>. Cnrrint 6 

Breneman v. Harvey 1375, 1376 

Brennan v. Swasey 1190, 1406, 1410, 

1420, 1521, 1613 

Brent v. Bank of Washington 376, 

377, 388, 393,417 

Brewer o. Chappett 457, 631 

Brewster v. McNab 634 

v. bime 950 

Briggs v. Austin 543, 548 

ir. Boston & Lowell R. R. 

Co. 284,291,305,335, 
1033, 1056 
v. Hill 1063, 1092 

v. Large 564 

v. A Light Boat 279, 1677, 
1727, 1748 
p. Planters' Bank 1110 



3igitiz eC by GOOgk 



TABLE OF OASES. 



trim v. Titus 
Sright v. Boyd 



1323, 1271, 1808 

1131, 1132,1136, 

1186 

b. Larcher 11 SO 

Briuckerhoff v. Board of Educa- 
tion 1375 
Brindley v. Cilgwyn Slate Co. 912 
Briokerboff u. Briokerhoff 1487 
v. Vansciveii 1074, 1083, 
1086 
Briiben's Appeal 1164 
Brisker. ». Wilson 632 
Briscoe v. Bronaugh 1061, 1083 
v. Callahan 1087 
t>. McEiweeo £72, 623 
Bristol, The 1769, 1799, 1800 a, 
1806 
Brittow v. Evan* U21, 1601 
r. Whitmore 1177 
British Empire Shipping Co. ». 

Somes. 804, 972 

Briitan p. Barnaby 
Brittmum v. Jones 
Broach v. Smith 
Broad well t>. King 
Broadwood v. Granara 
Brock p. Hidy 
Broderick v. Poillon 



1155 
1063 
1092 
600, 502 
1126 
335, 1589, 
1603 



Brodt v. Rohkar 


1201, 1558 


Bromley d Hopewell 


633 


Brook p. Went worth 


713 


Brooke's Case 


no 


Brooke Iron Co. u. O'Brien 911. 921 


Brookman v. Hamill 1725 


1729, 1730, 




766, 1806 a 


Brooks, m re 


1092 


Brooks „. BlackweU 


1211, 1607 


v. Cunningham 
p. Hanford 


672 


206, 217 


b. Harrison 


313, 527 


v. Lester 1469 


1472, 1474 


v. Mastin 


1333 


v. Railway Co. 


1190, 1470, 




1620, 1625 


». Snell 


196, 203 


v. Staton 


463 


Brothers'i.. Williams 


1092, 1098 
682 


Brothers A pap, The 


1810 


Brown's Estate, in re 


1222 


Brown v. Arundell 


561 


v. Barrett 


1086 


v. Bigley 182, 190, 193, 230 




631 


p. Bodd 


1092 


»-Byam 


1088 



v. Christie 


1063, 1086 


p. Clayton 


262 


v. Coke 


1421 




1222 




1143 


v. East 


1105 


v. Gaslight Co. 1421, 1600 


v. Gil man 


1080, 1086, 1087 


t>. Goble 


1559 


tr, Goolsby 


1685 


v. Hamil 


464, 603 




1491, 1495, 1199 


v. Holmes 


687, 1021 


v. Rough 


1163, 1161, 1165 
61 


v. La Crosse Gas L. Jc,C. 


Co. 


1600 


t>. Lowell 


1199, 1288 


v. Mr Gran 


176 


■>. McKee 


no* 


p. Mayor 


44, 144 




1199, 1465 


v. Morison 


692 a, 1285, 1248 




1416 


v. Mew Bedford Inst for 


Savings 


251, 252 


v. New York 


187, 188, 193, 



200 



1079 



v. North 

o. Porter 

v. Bodocker 

t>. School District 1496 

t>. Simpson 1063 



v. Smith 

r. Thomas 

f . Vanlier 
t>. Volkaninz 
i). Welch 
p. Williams 
v. Wright 



564 
1494 



1602 



1300, 1500 a 

1211, 1421 

'. Zeiss 1236, 1236, 1543, 1586 

Browne v. Hare 916 

v. Smith 1368 

Brace p. Berg 1135, 1144 

v. TilsoD 1127 

v. Wait 447, 464 

Brudenell v. Bough ton 1164 

Brum v. Merchants' Mnt Ins. Co. 85 

Bruaer's Appeal 1045 

Bruner n. Sheik 1215 

Brunsdoo v. Allard 13, 28, 155, 196, 

203, 218, 231 

Brush v. Kinsley 1063, 1092 

Bryan r. Sanderson 553 

irix 



3igitiz eC by GOOgk 



TABLE OF CASES. 
Kef erenee to Section*. 



Bryan v. Whit ford 



1199 

465, 901 

Bryant n. Mercier 612 

p. Stephens 1045, 1067, 1079, 

1100, 1124 

Bryon p. Carter 875, 877, 380, 381 

Buchan p. Sumner 94, 796 

Buchanan t>. Roy 1563 

p. Smith 1210 

Buck if. Lee 556 

p. Paine 783 

Bucker «■ Donovan 857 

Buckeye State, The 1802 

Auckland e. Pocknell 107], 1074 

Buckley v. Fundi* 801, 838, 878, 

887, 921, 962, 965 

v. Handy 1018 

p. Packard 478 

p. Taylor 1283, 1404, 1556 

Buckner p. Mcllroy 606, 986 

Buckstaff i'. Dunbar 1256 

Budd v. Busti 1063 

p. Lucky 1216 

v. Trustees 1216, 1286 

Bwhl.Tke v. Spence 437 

Buddington v. Stewart 1682 

Buel v. Lockport 1502 

Buflington v. Hille'y 597. 611 

Buford v. McCormick 1069, 1083, 

1085, 1092 

Bulger p. Holly 1083 

Bulkly o. Healy 1599 

Billiard v. Back 384 

p. Randall 57 

Bullock d. Graham 1102, 1103 

p.Horn 1291,1297 

p. Stchcree 821 

Buncombe Co. v. Tommey 1618, 

1663 

Bunn v. Valley Lumber Co. 817 

Bunney P. Poyntz 322, 801, 834, 

837, 838, 853, 877 

Bunton v. Palm 1487 

Buntyn p. Shippers' Compress Co. 

1210 

Burbank r. Wright 1572 

Burbridge d. Marcy 1235, 1236, 1281 

Burch P. Burch 1155, 1164 

Bun-hard p. Bees 571 

Burdick v. Moon 1262, 1264 

v. Monlton 1256 

Burdict ii. Murray 731, 1002, 1036 

Burford v. Crandall 387 

Burger p. Hughes 1088 

p. Potter 10H8 

Burgess v. Fairbanks 11U0 

p. Gun 274 



Burgess p. Kattleman 516 

p. Wheate 1105 

Burghall p. Howard 858 

Burgie p. Davis 751 a, 778 

Burgwald v. Weippert 1260 

Burket p. Bonde 618 

Burkett p. Munford 1126 

Burkhart e. Howard 1119 

■>. Retsig 1199 

Burkitt p. Harper 1235, 1236, 1251, 

1265, 1281 

Burlingim p. Cooper 1562 

Burlington & Mo. River R. R. Co. 

t. Chicago Lumber Co. 282 

Burlington, C. R. & N. B. R. Co. 

v. Verry 1646 

Burn p. Brown 42S 

p. Carvalho 43, 45, 55, 58 

v. Whittlesey 1599 

Burnham v. Winsor 9S1, 932 

Burns p. Allen 137, 151 

v. Griffin 1098, 1105 

p. Harris 789 

v. Scwell 1328 

p. Taylor 1063, 1091 

Burr p. Graves 693, 1225, 1272 

p. Maultsby 1470, 1488 

p. Van Uuakirk 593 

p. Wilson 931 

Burrill e. Cleeman 332 a 

Bun-ill p. Reach 956 

Burrough v. White 1389, 1418 

Burroughs p. Tontevan 1614 

burrns i.'. Roulhac 1086 

Burt v. Parker 1286 

p. Wilson 1063, 1083 

Burton p. Curyea 825 

p. Mckinney 1102 

p. Smith 582 

Huser p. Shepard 1558 

Busfieldp. Wheeler 1033, 1044, 1056, 

1499 

Bufh, ex parte 113, 131, 156 

Buckirk v. Purinton 304 

Buswell v. Marshall 5l8 

Butchers' Union v. Slaughterhouse 

Co. 113, 115, 177n 

Jutk'rp. Douglas* 1123 

1199, 1286, 1554 






622 

p. Riihm 1675 

v. Rivera 1257 

v. William* 1116 

v. Woolcott 265, 303, 901 

Butt p. Ellett G42 

Butterfield p. Baker 550 

p. Okie 1076, 1083 



: ec b y Google 



TABLE 07 CASES. 
Reference to Section*. 



Button v. Scbroyer 


1108 


Campbell v. Henry 


1086 


Butts i>. Cuthbertson 


100S 


p. Heater 


35 


Byard i>. Parker 


1570 


v. Mullett 


788 


Br nan »• Hill 


1165 


v. Rankin 991, 


106S, 1107, 


Byrne r. Ilerrsn 


I860 




1119 


p. Unioo Bank 


375, 381 




429 


Bvrnes r. Fuller 


867 


p. Roach 1085 


1094, 1100 


Byrns v. Woodward 


1116 


t>. Scaife 


1289 






Campbell Hanoi. Co. v. W 


204 






alker 610 


C. 




Campbell Printing Press 


Co. t*. 






Powell 


854 


Cabarga,The 


1696, 1728 


Canada, The 


1681, 1718 


Cabeen u. Campbell 


931 


Canal Bank p. Hudson 


1136, 1164 


Cabot, The 


205, 1707 


Canal Company v. Gordon 


112, 1450, 


Cade p. Brownlee 


1069 




1500, 1620 


Cadwaloder a. Tindall 


564 


Canary No. 2, The 


1730, 1745 


Cady it. McDowell 


615 


Cane v. Martin 


122, 122 a 


Cage v. Wilkinson 


158, 166 


Can is ins v. Merrill 


1350, 1554 


Cabill v. Cabill 


198, 207 


Cann r. Fidler 


1163 


p. Capen 


1315 


Cannon r. Bonner 


1086 


p. Lei 


592, 622 


v. Mc Daniel 


1092 


Cain o. Cox 


1146 


it. Williams 1389, 


1S90, 1406, 


Cairo & St. Louis R. 


R. Co. v. 


1417 


1556, 1614 


Cauble 


1644 


Canterberry v. Jordan 


652, 625 


Cairo & St. Louis B. 


R. Co. p 


Canton, The 


1703, 170-1 


Watson 


1283, 1644 


Cape Fear Steamboat Co. 


v. Tor- 



Cairo & Vincenae* R. R. Co. 

Fackney 990, 1041, 1495, 1631, 

1644 

Calahan v. Babcock 902, 929, 935, 
965 

Caldwell v. Asbury 1260, 1431 

». Bartlett 306 

p. Froim 1110 

e. Lawrence 962, 990, 1493 
p. Tutt 

Caldwell Institute p. Young 1203, 1276 

Calef p. Brinley J"'" 

California, The 3 

California Powder Works t>. Blue 
Tent Gold Mines ' 1405 

Calkins p. Stcinbacb 

Call p. Seymour 

Callaway v. Walls 

Calvert v. Aldrich 114 7 

p. Coxe 

Calvin r. Duncan 1136 

Camanche, The 

Cambria Iron Co.'s Appeal 

Camden p. Vail 1080, 1086, 1088 

Cameron c. Fay 1541 

v. McCulloogh 1223, 1262 
v. Marshall 1382 

v. Mason 1063 

Camp p. Uifford 1071 

Campbell v. Campbell 1151, 1153 



Capelle r, Baker 1194, 1555 

Caper v. Spottiswoode 1080 

Capp p. Stewart 1262 

Capron c. Strout 1308, 1366, 1441, 
1568 
Cardinal p. Edwards 699, 1002 

Carew p. Stubbs 1252, 1288a, 1468, 
1542 
Carey p. Boyle 1069, 1093 

Cargo ex Argos 283, 287 

Cargo ex Sultan 287 

Carhart p. Reviere 1119 

Carlisle e. Kinney 800 

p. Enapp 1216, 1283 

Carlton p. Buckner 1092, 1096 

Carman p. Mclncrow 1218, 1287, 1294 
Carne« t>. Hubbard 1086 

Carney v. La Crosse & Milw. R. 

R. Co. 1574 

v. Tully 1199 

Carolina, The 1771 

Carpenter p. Black Hawk G. M. 

Co. 1674 

v. Gillespie 563, 582 

p. Leonard 1260, 1313 

v. Mitchell 1092, 1111, 

1115, 1119, 1141 
p. Sixth At. R. K. 

Co. 209 



* Google 



TABLE Of CASES. 



Reference to Sections. 



Carpenter v. Small 1141 

Gut v. Fogg 523, 525 

r. Hobbs 1063, 1083 

v. Holbrook 1110 

». Hooper 1313, 1451, 1607 

f. Nat. Security Bank 07 

v. Thompson 1039, 1090 

Carrico v. Fanners' & Merchants' 

Nat. Bank 1086 

Carrie, The 1806 

Carroll v. Baneker 820 

v. Mullanphy Sav. Bank 881 

v. Shapard 1086 

it. Van Rensselaer 1063 

Carson v. Electric Light & Power 



Cattell v, Ferguasi 



1263, 1366 
216 



Co. 



616 



v. Kellev 1102 a 

v. The Daniel Hillman 1436 
v. White 1404, 1417 

Canon Opera House Asso. u. 

Miller 1289, 1304 

Carter v. Attoway 1101 

tt. Bennett 167, 172, 219 

v. Davis 167, 172, 220 

t>. Du Pre 635 

v. Humboldt F. Ins. Co. 1541 

v. Rockett 79 

v. Sims 1109 

v. The Byzantium 1532 

v. Townsend 1808 

v. Walters 598 

e. Wiison 454 

Carter County Court v. Butler 1116 

Cartwright v. Wilmerding B32, 959 

Carver u. Coffman 1149, 1151 

t>. Eads 1063, 1064,1094 

t>. United States 200 

Caaar v. Sargeant 175, 310 

Case ». Allen 557,692 

v. Bank 403 

v. Beauregard 787, 788, 789, 

790, 791, 792, 793 

v. Davis 633 

v. Kloppenburg 620 

Case Manuf. Co. v. Smith 1340, 1581 

Caseyv.Ai.lt 718 

v. March 115, 137, 141, 159 

v. Weaver 1308, 1534, 1609 

Caehman v. Henry 1260 

Castanola e. Missouri Pac. By. 



Co. 



946 



Castle v. Sworder 
Castor v. Jones 1163 

Gate ». Cate 1092 

Catlin v. Douglass 1202, 1430, 1438 
Cator v. Pembroke 1076, 1084, 1105 
Cattanach v. Ingersoll 1808 



Caylor v. Thorn 1200 

Cayuga Co. Nat. Bank v. Daniels 

61, 62 
Cecil Bank v. Farmers' Bank 260 

Central Bank v. Peterson 628 

Central M. K. R. Co. o. Henning 

1668 
Central Ti.R Co. v. Pettus 147, 169, 
201, 208 
Central Trust Co. v. Cameron 

Iron & Coal Co. 1309 d, 1472 

Central Trust Co. v. Sheffield & 

B. By. Co. 1187, 1341, 1555 

Central Trust Co. v. Texas & St. 

L. By. Co. 1655 

Certain Logs of Mahogany 270, 327, 

1693 

Cessna's Appeal 

Chad bourn v. Williams 



Chad wick v. Broad well 
Chaffin v. McFadd 
Challoner v. Bouck 

Chalmers, ex parte 
Chamberlain v. Heard - 

v. Mastersoo 
Chamberlin v. McCarthy 

v. Pelt* 

Chambers v. Benoist 

v. Yarnall 

Cbambersburg Ins. Co. v. 

Champion v. Brown 

Champlin v. McLeod 

Chance v. McWhorter 

Chandler v. Belden 

v. Chandler 

v. Fulton 



1389 
1219,1313, 

1468, 1480 

998, 1002 

1588 

14 77 

1605 

840, 852 



108S 



'. Hanna 1] 



1079, 1083 

268, 322, 1002 

1100 

861, 875, 919, 

929, 953, 965 

17, 1451, 1659, 

1561 



Chanslor v. Chanslor 

C ha pin v. Persse, &c. Works 1310, 

1311, 1314, 1325, 1328, 

1330, 1587 

Chapine. Waters 1165 

Chapman n. Abrahams 1067 

v. Allen 641, 743 

t>. Beardsley 1063, 1071 

v. Chapman 1088 

v. Haw 196 

v. Kent 488 

v. Lee 1099, 1100 

tr. Liggett 1063, 1083, 1092 
v. Peebles 1101 



3igitiz eC by GOOgk 



TABLE 07 CASES. 



Chapman v. Searle 833 

p. Shepard 842 

p. Stockwell 1074 

v. Tanner 1061 

v. The Greenpoint 1718 

v. Wadleigh 1469, 1476 

v. White 50, AT 

Chappel p. Comfort 273, 274 

Chappall v. Cady lis, 731 

Charbonean p. Orton 151 

Charles Carter, The 1 786 

Charles Hemje, The 1697 

Charles v. Neigelton 691 

Charleston Lumber & Manuf. Co. 
a. Brockmyer 1231, 1233, 1260, 

1487 
Charlotte, The, v. Hammond 1532 
Charlotte Vauderbilt, The 1686, 1 793 
Charlwood v. Berridge 234 

Cham ley v. Honig 1513a 

Charnocs: v. Colfax 1375 

Chase v. Chase 233 

d. Corcoran 485 

v. Ingalli 820 

v. Peck 77, 82, 1063, 1071. 

1105 
o. Steel 795 

v. Westmore 6, 320, 322, 741, 
850, 973 
Cheatham t>. Rowland 1243, 1580 

Chelmsford, Tho 1680, 1681, 1687, 
1808 
Cheney v. Bon nell 1278 

v. Troy Hospital Associa- 
tion 1218, 1286, 1599 
Cherry v. North k South R. R. 

Co. 1562 

Cheshire Provident Inst. p. Stone 

1215, 1465, 1468 
Chester Rolling Mills v. The Ho- 

patconk 1809 

Chevret v. Lumber Co. 780 

Chicago v. Hastey 1375 

b. Bobbins 1492 

Chicago & Alton R R. Co. v. 

Union Rolling Mill Co. 1006, 1016, 

1340, 1586, 1644 

Chicago & Northwestern Ry. Co. 

o. Jenkins 982 

Chicago Artesian Well Co. v. 

Corey 1 199 

Chicago, Burlington & Quinoy 

R. K. Co. o. Fainter 929, 966 

Chicago Lumber Co. v. Osborn 1257, 

1393, 1453 

v. Schweiter 

124$, 1247, 1458, 1470 



Chicago 


Lumber Co. 


v. 


Wood 










1290 


1508 


Chicago 


Marine & F. 


Ins 


Co. t 




Stanford 






67 


Child v. 


Hudson's Bay 


Co 




377 


Childer 


v. Greenville 






1287 


Childs t 


Anderson 






1315 




Bostwick 




1454 


1614 




Northern Ry. 


Co 




897 




Shower 






1145 


Chilton 


t>. Braiden 




1063 


1115 


Chimera 


,Tbe 




1781a 


China, The 






1769 


Chisholm v. The J. 


L. Fender- 




gast 






1706 




v. Randolph 




1199 


1532 




v. Williams 




1257, 


1532, 
1591 



Chitwood tr. Trimble 1111, 1116, 

1119 

Choata v. Tighe 1069 

Chateau v. Thompson 1220, 1257, 

1272, 1325, 1326, 1327, 1370, 1437, 

1480, 1482, 1492 

Chouteau Spring Co. v. Harris 381 

Chownlng v. Barnett 109 

Chrlsman v. Hay 1074 

Christian v. Austin 1074, 1090 

v. Clark 1120 

v. Ellis 787 

v. Field 1182 

Christman v. Cbarleville 1558 

Christmas v. Russell 48, 57 

Christnot v. Montana G. St 8. M. 

Co. 1308 

Christobal Colon, The 1771 

Christopher v. Christopher 1076 

Christy v. Ogle 1127 

v. Perkins 193 

Church t>. Allison 1284 

v. Griffith 1274 

■>. McLeod 820 

v. Schreiner 1585 

v. Smith 1107 

Chusan, The 1681, 1800 a, 1806 a, 

1808 

Circassian, The 1718 

Citizens' Nat. Bank t>. Culver 232 

Citizens' State Bank v. Adams 1100 

City Bank Case, i 

City of Buffalo v. 

City of London, The 1700 

City of Mexico, The 1694 

City of New York, The 1 690 

City of Pittsburgh, The 1677, 1760 

City of Salem, The 1699, 1731, 1759 

City of Tawas, The 1779, 1788, 1802 

zxxiii 



ioogle 



TABLE OF CASES. 



Reference to Sections. 



Claea i>. Dallas Loan Asia. 1226, 1462 

Claflin v. Bennett 147 

Clantoo v. Eaton 603 

Clapp v. Peck 878, 936 

v. Peterson 84 

v. Sobmer 878, 960 

Clare v. I/jckard 231 

Clark v. Adams 712 

v. Binninger 228 

v. Burns 503 

v. Bobbins 456, 577 

v. Draper 800, 802, 854 

v. Farrar 4S7 

b. Fraley 672 

v. Hale 733 

v. Hall 1064, 1202, 1830 

v. Havnes 616 

v. Hunt 1074 

v. Kingsley 1207, 1534 

v. Lowell ft L. B, R. Co. 304, 

306 

t>. Manning 1199, 1580, 1585 

v. Mauran 45, 880 

it. Merchants' Bank 268 

p. Moore 1013,1016, 1199, 

1465, 1519, 1531, 

153B 

v. Parker 1267, 1539 



v. Raymond 


1691 


v. Schata 


1392 


ti. Smith 19E 


, 208, 1728 


v. Stilson 


1088 


v. Taylor 


1616 


Clarke n. Boy la 


1199 


v. Curtis 


1072 


v. Boyle 


1074 


v. Southwick 


80, Sfl 


Clarkion v. Edes 


262 


Clay, Succession of 


1063 


Ciaybrooks v. Kelly 


1067, 1069 


Clayton, The 


1704 


Clayton v. Butterfield 


607 


Clear Creek Co. v. Boot 


1191, 1660 


Clement v. Newton 


1532 


Clementaon v. Grand Trunk Ry. 



Clough ». McDonald 1202, 1289, 

1304, 1428 
Clyde v. Simpson 89, 1168 

p. Steam Transportation 

Co. 1729,1778,1794 

Clymene, The 1712 

C. N. Johnson, The 1804 

Coal Co. v. Steamboat Colons 1436 
Coatea v. Acheson 513 

o. Donnell 42, 642 

v. Doran 57 

v. RaUton 917,921,922 

Cobb v. Howard 1798 

Coburn v. Harvey 624, 640 

». Eerswell 710, 724, 1010 

Cocheco Bank v. Berry 1440, 1465 
Cochran t>. Riby 825 

v. Wimberly 1109 

Cochrane v. Schryver 512, 618, 515 
Cockburn v. Watkins 603 

Coddington i>. Bay 259 

v. Beebe 1 216 

■>. Dry Dock Co. 1216, 
1268, 1841, 1370 
Code v. Carlton 1657 

Codling v. Nast 1417 

Codwise tr. Taylor 1102 

Coe v. Hart 42 

v. New Jersey Midland Ry. 

Co. 74, 1384, 1660 

v. Sitter 1418, 1579 

Coenen v. Staub 1349 

CotBn v. Heath 1147, 1148 

v. Reynolds 1629 

Cogel v. Mickow 1382 

Coggill v. Hartford ft N. H. R. R. 



Co. 



949 



Clemson v. Davidson 21, 68, 460 

Cleveland t>. Martin 1108, 1119 

Clevenger v. Dunaway 
Cleverly v. Moaeley 1401, 1421, 1600 
Clifford «. Beems 
cTurrill 

Clifton v. Foster 1546 

Close v. Clark 1411 

v. Waterhonse 
Cloud v. Kendrick 1340 

t>. Needles 



Co. 



820 



Cohee o. Baer 1604 a 

Cohen ii. Bronghton 071, 612 

ti. Kyler 1887 

c.Woollard 1102 

Cohnv. Haeer 1189,1235 

o. Wright 1406, 1589 

Coit v. Fougera 1071, 1086, 1088 

v. Schwartz 445 

t>. Waples 986 

Colclongb v, Mathis 611 

Coldcleugh v. Johnson 1123 

Cole v. Barron 1404, 1407, 1449, 

1691, 1615 

v. Bennett 203 

v. Berry 820 

r. Colby 1313, 1314, 1817 

v. Custer Co. Agrio. Ajao. 1421, 

1600 

ii. Grant 217 

». Scot 1066 



B ,tiz ec0y Google 



TABLE OF CASES. 



Reference to Sections. 



Cole p. Smith 40, 1069, 1072 

v. Turner 1183 

n. TvDg 973 

v. Uhl 1444, 1603 

Cole Mannf. Co. v. Falls 1225, 1304 a 

Cotegrsre p. Mauler 123, 122 a, 132 

Coleman v. Ballandi 1383 

0. Fairbanks 620 

v. Howell 1171 

v. Ryan 233 

v. Slier 579, 583, 585, 60S 

Coles v. Harqnacd 077 

v. WiLhers 1099, 1110, 1116 

Collett v. Preston 216 

Coller v. Doughty 1570 

Collier v. Fadk 464 

v. Pfenning 14S7 

Collins' Appeal £71, 633 

Collins v. Blake 108 

p. Cowan 730 

o. Drew 1218 

v. Hathaway 203 

v. Martin 248 

v. Megraw 1263, 1264 

p. Mott 133C, 1341, 1384, 

1478 

v. New Albany 137C 

t>. Nickerson 205 



!:?$T 



p. Patcl 
Collins Granite Co. p. Devereux 761 
Collinsan v. Owens 70 

Oollmaa t>. Collins 304 

Colman v. Goodnow 1248, 1259, 

1431, 1452 
Colquitt t>. Kirkman 655, 692 

Colter v. Freie 1200, 1286, 1305 

Columbia, The 1769,1799 

Columbus, The 1690, 1729, 1731 

Combination Land Co. 0. Mor- 



gan 



1077 
1216 



Comb* v. Lippincott 

Comer r. Daniel 

Comfort, The 1686 

Commercial Bank of Albany v. 

Hughes 
Commercial Nat. Bank v. Ileil- 

bronner 418,466,478 

Commercial Tel. Co.-o. Smith 

189, 194, 209 
Commerell v. Poynton 
Commonwealth p. Lelar 
Compton v. State 155, 229, 231 

Conutock v. McCracken 731, 1023 
p. McEvoy 1208 

Conant r. Bracken 1276, 1280 

v. Seneca Co. Bank 376, 404 



Conard v. Atlantic Ins. Co. 11, 451, 



v. Nicoll 




451 


p. Pacific Ins. Co. 


451 


Hondict v. Flower 




1540 


^onfiuation Cases 




620 


Conklin p. Bauer 




1245, 1247 


p. Carver 




667. 687 


p. Second Nat Bank 884 


p. Wood 


1390, 


1454, 1455, 
1S89 


Honnah v. Hale 




364 


Connecticut Mut. Life Ins. Co. v. 


Scott 




405 


Connell p. Beattie 




1126 


Conner v. Banks 




1116, 1119 


v. Lewis 




124S 


Connor p. Boyd 
Donovar v. Warren 




196 




1063 


Conrad p. Patzelt 




62f> 


«. Starr 


J201 


1257, 1469, 
1S6S 


Conrow v. Little 




9, 743 


Courov p. Woods 




791, 793 


Conitantia, The 




884, 886 


Constantine p. The River Queen 






1716 


Conter «. Farringto 




1397 


Convene p. Hill 




859 






1101 


Conway p. Crook 


1206 


1262, 1263, 
1264 


e. Lowry 




632 


p. Starkweather 


571 


Con well v. Kuykendall 


376 


Conyers p. Eanis 




882 


e. Gray 




151 


Cood p. Pollard 




1011 






1470, 1546 


Cook v. Banker 


96, 1080, 1183 


p. Black 




32 


v, Brannin 




431, 463 


p. Cobb 




784 


s. Goodyear 




1239 


v. Gregg 
p. Heald 




103 

1554 


p. Kraft 




1081 


p. Murphy 




1289 a, 1502 


v. Prentice 




498, 501 


p. Tullis 




1180 


p. Vreeland 




1199 


p. Williams 




1289 a 


Cooke v. Thresher 


137, 146, 1S4, 158, 



Cooler i>. Patterson 165, 194 

Coombs p. Bristol & Exeter Ry. 



TABLE OF CASES. 



Keierenoe to Sections. 



Cooper's Trusts, 11 
Cooper, ex parte 



Cooper o 



Bill 



9se, i 



1340 



835, 921 

>. Cappel 

v. C leghorn 

v. Merritt 

v. Singleton 1103 a 

Coos Bay Wagon Co. v. Crocker 1063, 

1064 

Coover's Appeal 769, T9S 

Cope v. Dock Co. 1677 

-Copeland v. Kehoe 105, 125S, I860, 

1261, IS 63 

v. Mantoo 1287, 1301 

Copland v. Bosquet 



Copley v. O'Niel 

v. Hay 

■Corbett v. Cushing 

c. Greenlaw 

t>. Laurens 

Corbltt a. Reynolds 

Cordova v. Hood 



433 



576 a 



1084, 1090, 1092, 
1098 
Cordova Coal Co. v. Long 1071 

Corey f. Harte 



Corliee v. Howland 
Cornell v. fiaroey 

v. Lamb 

v. Matthews 
Corning v. Ashler 
Cornwall «. Haigbt 
Corsair, The 
■Corwine v. Corwine 
Cory 0. Barnes 
Coryell r. Ferine 
Cosier v. Greenpoint 

Cotes v. Shorey 
Cotter, v. McGehee 
Cottman o. Martin 
Cottrell v. Finlayson 1 

Coughlin v. N. Y. C. & Hud. Riv. 
R. R. Co. 165, 184, 188, 193, 1 

197, 203, 206, 208, 209 
Coulter, in re 1546 

Conuibe, in re 276, 330 

Count, de Lesseps, The 1 722 

Courtney v. Insurance Co. 

t>. McGavock 169, 197, 208, 

209 

Covellc. Hitchcock 921, 935, 986 

p. Weston 1174 

Coventry v. Gladstone 



1068, 1074,1082, 

1083, 1090 

1236, 1236, 1273, 

1280, 1281 

G71, 586, 598 

1216 

691a 

800 

1725, 1729 

1163. 1164 

816, 8S4 

1712, 1725 

Ferry Co. 

198,210 

1236, 1S25 

1092 

1074 



Covington v. Bass 190, 203, 2SS 

Covington v. Newberger 499 

Cowan «. Sharp 109S 

Cowardin e. Anderson 1157 

Cowaajee v. Thompson 878, 907, 9U 
Cowdrec v. Railroad Co. 147, 167 

Cowdriek v. Morris 1309 d 

Cowell v. Simpson 6, 128, 154, 850, 
1000, 1009, 1011 
Cowen t>. Boone 229, 211 

o. Paddock 1254 

Cowing t>. Snow 368, 270, 1035 

Cowl v. Varaum 1074, 1519 

Cowper o. Andrews 731 

"owperibwaite v. Sheffield 55, 56 

Cox's Succession 1204 

Cox v. Broderick 1298, 1543 

v. Burns 861, S66, 924, 965 

d. Colles 1532,1599 

p. Jordan 613 

v. Reiser 1695 

v. Lnmber Co. 719 

v. McMullin 1158 

r. Murray 1713 

v. Koioine 1098 

v. Western Pacific R. R. Co. 

1394, 1619, 1620, 1637 

Coykendall v. Eaton 506 

Cozzens v. Whitney 229 

Craddock v. Dwight 712 

v. Bidolesbarger 552, 618 

Craft v. Russell 1077, 1083 

Cragin p. Travis 217 

Craig v. Dunn 1142 

v. Merime 613 

v. Smith 1216, 1286, 1287, 1301 

p. Swinerton 1247 

Crampton v. Prince 1087 

Cranda.ll v. Cooper 1462 a, 1469, 1470 

Crane o. Genin 1218, 1286, 1287, 

1294, 1295 

Crane Manuf. Co. v. Keck 1307 

Cranston tr. Cargo of Coal 310 

t>. Philadelphia Ins. Co. 

420, 469 

*. Union Trust Co, 1619 

Craskey v. Corey 1519 

Craton c Wright 1142 

Craus v. Hamilton Co. 1086 

Craven t>. Ryder 801, 841, 914, 960 

Crawcour, ex parte 820 

Crawcour o. Salter 820 

Crawford v. Anderson 1312, 1813 

v. Blackman 1430, 1492 

v. The Caroline Reid 1729, 

1738 

v. Coil 626 



,oogl< 



TABLE OF OASES. 



Reference to Section*. 



1766 
1800, 1286, 
1837, IS 74 

t>. Powell 1200 

p. Richeaon 99, 993 

Crawfordsrille v. Barr 1327, 1368, 

1674 

t>. Boot* 1481 

>, Brundage 1327 

p. Irwin 1200 

v. Johnson 1200, 1423 

v. Lockhart 1327 

Crawley v. RijTOfl 1092, 1096 

Crawahay v. Esdes 926, 927, 942, 962 

v. Homfray 6, 822, 850, 

973, 980, 1002, 1004 

Crean v. HcFee 1511, 1552 

Creighton p. Ingersoll 187 

Cresap p. Manor 1086 

Crippen p. Heerm&nce 1088 

Cripwell, ex parte 150 

Crisfiel v. Murdock 99 

Crocker p. Mann 626 

Oommelin v. N. Y. ft Harlem R. 

R. Co. 281, 282, 731 

Cromwell v. Owings 562 

Croak p. Whittaker 1298 

Cronkright v. Thomson 1S98, 1S88, 

1614 

Crooks p. Allan 288 

r. Finney 1S36, 1637 

Crosby b. Dracut 1142 

v. The Little 1811 

Croikev v. Corey 1519, 1528 

v. Coryell 1329 

v. Northwestern Manuf. 

Co. 1199 

Cross p. Ackley 175 

p. B. & S. W. B, Co. 90 

v. Gault's Appeal 1179 

v. Memphis 8iC.ILE.Co. 836 

p. O'Dounell 861,912 

p. Pho-nix Bank 402 

p. Tome 622 

o. Wilkins 515 

Croat'i Appeal 28 

Croa.au v. N. T. & N. E. R, R. 

Co. 291, 297 

Crotty v. McEenzie 184, 187, 188, 
193, 209 
Crouch p. Moll 1614 

Crowell v. Gilmore 1492 

Crowfoot n. Gurney 
Crawl v. Nagle 1685 

Crowley r. Le Due 
Cramp p. Gill 1548 

Crystal Stream, The 1708 



Citer v. Roas 719 

Culbertson v. Stereos 1065 

Calbreth v. Philadelphia, W. ft B. 

R. R. Co. 284 

Cullins p. Flagstaff Silver Mining 

Co. 1366 

Culver p. Elwell 1312, 1318, 1610 

Fleming 1199 

Cumberland, The 1680, 1681, 1691, 

1692, 1699 

Coming v. Brown 946 

Camming p. Wright 781 

Cummin gs p. Gann 487, 489 

v. Harris 4, 5, 641, 731 

p. Moore 1098 

p. Oglesby 1119 

Cnney v. Bell 1075 

Cunnear. Williams 554, 585, 588, 618 

Cunningham p. Ala. Life Ins. ft 

Trust Co. 877, 895 

p. Barr 1428 

p. Ferry 1199 

p. Hedrick 1125 

v. McGrady 226 

p. Widing 133 

Cure ton p. Gilmore 69 

Curnew v. Lee 1338 

Curnow t>. Blue Grovel H. Co. 1184, 

1190, 1559, 1600 

Currier p. Boston & M. R. R. Co. 

168, 165, 212, 220 

p. Cumminga 1278, 1386, 1479 

Curry v. Ron I stone 646 

Curtis p. Broadwell 1201 

p. Jones 731 

Cashing p. Breed 885 

Cutcliff p. McAmUly 1260, 1261, 

1431, 1432 

Cutler p. McCormick 1286, 1287, 

1290 

310 

1230 



p. Rh 

Cutter p. Striegel 



Daggett r. Tracy 1142 

Dailey v. Cain 1143 

v. Grimes 672 

Daily p. Reid 1092 

Daisy Day, The 1698, 1773, 1774, 
1781, 1781 a, 1786 
Dalgleish p. Grandr 631 

Dalles L. & Manor. Co. p. Wasco 

Woollen Manuf. Co. 1311, 1812 

Dalrymple p. Ramsey 1216, 1244, 

1561 



y, Google 



TABLE OF OASES. 



Dalton v. Laudahn 544 

t'. Ruiney 1116 

Daliell t>. The Daniel Kaine 1696, 

1699,1717, 1760 

Dame v. Coffman 1S6S 

Damont v. Fry 244 

Damson i>. Robertson 227 

Dana v. Brown 870 

t>. Third Nat. Bank 07 

Dance v. Dance 1074, 1076 

Danforth v. Pratt 505, 999 

Daniel Kaine, The 1697 a, 1728 

Daniel v. Harris 612 

u. Powell 1176 

v. Watson 1102 

v. Weaver 1S35, 1272, 1334 

Daniels v. Hoeea 1116, 1123 

Dane v. M. O. & R. R. Railroad 

Co. 751 a, 778, 1494, 1619 

Danziger v. Simonson 1218 

D'Aquila v. Lambert 85V, 858 

Darting n. Harmon 1147 

v. Robbing 1110 

Darlington v. Chamber] in 432, 1002 

'!. New York 1375 

Darrow t>. Morgan 1218, 1613 

Dartji. Fitch 1287 

o. Mayhew 455, 708 

Danbigny v. Duval 307, 982 

Daugh&day v. Paine 1084, 1086, 1089 

Daugherty v. Eastburn 1102 

Davenport v. Bank of Buffalo 

v. Murray 1074, 1090 

Davidson v. Alfaro 217, 220 

v. Allen 1092, 1095 

, Davies, in re 

Davie b- Henderson Lumber Co. t>. 

Gottschalk 1190, 1235, 1382 

Davis, The 

Davis's Appeal 

Davis v. Alvord 1212, 1320, 1448, 

1556, 1559, 1S89 

v. Arledge 

v. Bigler 985, 988, 1018 

v. Bilsland 1212, 1470, 1494, 

1498 

e. Bowsher 241, 244 

e. Bradley 465 

v. Brown 1512 

v. Ballard 1428, 1460, 1438 

v. Child 1697 a 

v. Church 1568 

d. Connecticut Mnt. L. Ins. 

Co. 1465 

v. Cox 1088 

v. Davis 632 



)avis v. Gyde 

v. Hamilton 


585, 586 
1110 


v. Henry 


589 


v. Hines 


1220, 1406, 1418 


v. Humphrey 


1254 


t>. Livingflfon 


1190, 1287, 




1288 


v. Lumber Co. 


1574 


v. MeWhirter 


928 


p. Meyers 


611 


v. Parsons 


1534 


v. Payne 


562, 577 




1084, 1086 




1101 


o. Reynolds 


960 


v. Russell 


825 


o. Smith 


use 


v. Stratton 


1330 



v. Thomas 620 

v. Wilson 576 a, 636 

Dawson v. Dewan 590 

t>. Girard Life Ins. Co. 1067 
d. Harrington 1199 

v. Higgles 454 

Day o. Bowman 174, 226, 235 

t>. Wetherby 789 

Daybuffo. Dayhuff 1092, 1101 

D.B. Steelman, The 1697 6, 1747, 
1793 0,1797 a, 1808, 1810 
Deadyv. Fink 1550 

Dean v. Scott 1074 

t>. Wheeler 1588 

Dearborn Foundry Co. r. Augus- 
tine 1589 
Deardorff v. Everhartt 1306, 1828 
Dearie v. Martin 1222, 1262, 1264 
Deason v. Taylor 1071 
Deatherage v. Henderson 1327, 1932 
v. Woods 1202, 1391, 
1452, 1453 
Deaver v. Rice 547, 631 
De Boaverie v. Gillespie 1018 
Decan v. Shipper 952 
Decker v. Myles 1560 
De Coursey v. Guarantee Trust & 

Safe Deposit Co. 596 

Decrist v. Stivers 576 

Deering v. Lord 710 

Deese, ex parte 449 

De Forest v. Holum 1080, 1090 

De Graff v. Wickham 1289 

Deibler t>. Barwlck 1068, 1092 

Delahay t», Clement 1552 

v. Goldie 1202, 1304, 1428, 
1453 
Delamater v. M'Caakie 1S9 

Delassus v. Postou 1063 



3igitiz eC by GOOgle 



TABLE OF OASES. 



Reference to Section*. 



Delaware, L. & W. R. R. Co. p. 

Oxford Iran Co. 884, 1680, 1660 

Delaware R. R. Construction Co. 

f. Davenport & St. Paul R. B, 

Co. 1484, 1529 

Do L'Isle v. Moss 1094 

Delmonico v. Guillaume 799 

Delos De Wolf, The 1TBS 

De Lovlo p. Boit 1698 

Dempsey v. Canon 830 

Denhain w. Harris 073, 58C 

DemBon p. Shuler 1470 

Denkel's Estate, in re 1471, 1492 

Den mead p. Bank of Baltimore 14 78 

Dennett v. Cutt.a 116, 128, 208, 209 

Dannie v. Harris 290, 451 

Dennis v. Coker 1434 

v. Smith 1412 

v. Walsh 1262 

Denniatoun v. McAllister 1440, 1512, 

1613 

Denny «. Steakly 1074, 1086 

Deut >i. Dent 1160 

Deuver & B. 6. Ry. Co. v. Hill Co. 

291,292, 293 
De Ronde v. Olmsted 1235, 1259, 

1276 
Demckson v. Edwards 1216, 1423, 
1434 
v. Nagte 1283 

Denheimer p. Msloney 1289 a, 1502 
Deseadillas ». Harris 878 

Desha 0. Pope 465 

Deshon r. Bigelow 820 

Deslix v. .Tone 620 

De Smet, The 1777, 1794 

Detroit, The 1 802 

Detwiler v. Cox 572 

DeutHch v. Webb 189 

Derelin p. Mack 1599 

Dever r. The Hope 1729 

Deverenx v. Taft 1224, 1484 

De Vinne v. Rianhard 748 

Dcoy v. Bojer 217 

Dewey t>. Fi6eld 1588, 1589 

Dewing v. Wilbraham Congrega- 
tional Society 1252, 1324 
De Witt e. Smith 1286, 1304, 1421, 
1423, 1566 
De Wolf v. Howland 428, 471, 1009 

De Wolfe v. 150 

Dexter, Horton & Co. v. Spark- 
man 718, 1493 
Dexter s. Wiley 718 
Dey, in re 1470 
Dey c. Anderson 1808, 1536 
Dias v. Boncnand 451 



Dibblee n. Mitchell 


1086, 1090 


Dibrell v. Smith 


1098 


Dicas v. Stockley 


128,129 


Dickaaon 0. Eby 


1098,1116 


Dickerson v. Carroll 


1061 


v. Mechling 


1487, 1252 


Dickey's Appeal 
Dickinson v. Bolyer 


1335 

13)3 




81 


v. Harris 


606 


v. Wnrthingto 


n 1083 


Dickman p. Williams 


965 


Dickson v. Carroll 


1081 


v. Corbett 


1214 


Diehlv. Friester 


187, 159, 220 


Dierks t>. Walrod 


1247 


Dietrich p. Crab tree 


1278 


e. Folk 


1086 


Diets v. McCallum 


203 


Dill p. Wisner 


1164, 1165 


Diller n. Burger 1435, 1449, 1475 


Dillon )-'. Barnard 


48 




620 


Dimick v. Cooley 185, 


189, 20S, 210, 



Dimmick v. Cook 1385, 1348 

Dingledine it. Hershman 1199 

Dingley p. Bank of Ventura 1111, 

1112 

p. Greene 1287, 1289, 1299 

Dinkins r. Bowers 1210 

Dinn t>. Grant 1105 

Director, The 1713, 1784 

Dirks p. Richards 1018, 1025 

Disbrow v. The Walsh Brothers 1701 

Dixon p. Baldweu 867,904,917,919, 

921, 939 



t.. Buel 


1495 




1092 


v. Gayfere 


1071, 1074 


v. La Purge 

V. Stansfield 


12S5, 1589 


424 


v. Williams 


1053 


v. Yates 


808, 836, 888, 


841 


852, 885, 960, 




962 


D. M. French, The 


1799,1804 


Doane n. Badger 


71, 1147 


v. Clinton 


1405, 1532 


v. Garretson 


552, 553, 582, 




616 


v. Russell 


522, 986, 1033, 




1056 


Dobbins v. Walton 


404 


Dobschuetz e. Holliday 


1273, 1274 


Dock Co. 0. Gibson 


1729 


Dod v. Fourth Nat Bank 259, 261 



, Google 



TABLE OF OASES. 



Dodd v. Brott 179, 222 

Dodge «. Evans 1063, 1084, 1083 

v. Manning 1168 

p. Roraaiii 1262 

p. Sctaell SOI 

v. Walsham 1228 

Dodsley o. Varley 80! 

Dodson t>. Wentworth 885, 921, 9(4 

Doe v. Monson 710, 729 

Doebling v. Loos 1633 

Dollahite e. One 1119 

Dolphin, The 1698,1700 

Domestic Sewing Machine Co. v. 

Witters 515 

Domnau r. Green 690 

Donaher v. Boston 1325 

Donahue v. Cromartie 1190, 1827, 

13!], 1335, 1341 

Donahy v. Clapp 1289 

Donald v. Hewitt 28, 41 

Donaldson v. Holmes 1240, 1256 

v. McDowell 1720 

f. O'Connor 1538 

v. Wood 1360 

Donath v. Broomhead 911, 933, 940 

Donegan v. Henli 1086 

Donefian », Hardy 795 

DonnelU. Manson 1748 

v. The Starlight 710, 744, 

1729, 1748, 1795 

Donnelly v. Edelen 1167, 1172 

Donovan v. Donovan 1074 

Doolittle v. Jenkins 1073 

v. Pleni 1218, 1317, 1320, 



Dora, The 



1699, 1778,1786, 



Bore v. Sellers 
Dorestan v. Krieg 1 I 
Dor-man p. Crosier 
Dormer v. Fortesque 
Dorsey v. Hall 

p. Lang worthy 
Dothage r. Stuart 
Dougherty v. Kellam 
Doughty v. Devlin 



1108 
1381 
1134 
636 
1218, 1293, 



i. St. Louis Zinc Co. 1389, 
1470, 1547, 1548 

p. Shamway 822 

Douglass u. Huston 94 

>'. McCord 1199, 1287 

v. McFarland 762 

Dover p. Gregory 1166 



Dow 



. Ker 



77 
1310 



Dowling r. Eggemaa 1ST 

Downer v. Zanetville Bank 819 

Dows o. Greene 465, 946 

v. Kidder 820 

p. Pen-in 946, 952 

Doyle v. McLeod 718 

p. Orr 1084 

e. State 1659 

». True 710, 729 

p. Truitt 1211 

Drake v. Green 1465, 1456 

p. O'Donnell 1287, 1290 

v. Taylor 34 

d. Whaley 685 

Drakford v. Turk 599, 603 

Dresser v. Missouri & Iowa By. 

Construction Co. 1083 

Drew v. Mason 1341 

Drexel v. Pease 63 

Drlesback v. Keller 1354 

Drinkwater v. Goodwin 418, 449, 

470 

v. Moreman 1067 

Driscoll tj. Hill 1308 

p. West Bradley & Cary 

. Mannf. Co. 375, 381 

Driver v. Ford 1199 

v. Hudspeth 1107,1123 

v. Jenkins 541 

v. Maxwell 611 

Drope p. Thaire 518 

Druse v. Horter 1232 

Dryden v. Frost 1092 

Du Bay p. Uline 1589 

Dubois' Appeal 115, 128, 137, 145, 

148 

Dubois v. Hull 1071, 1088, 1090, 

1098, 1100 

v. Wilson 1470 

Du Boieon o. Maxwell 151 

Dubuque, t'n re 1800 

Dubuque, The 1706, 1803 

Ducker v. Gray 1086 

Dudgeon v. Dudgeon 1168 

Dudley n. Dickson 1063, 1080, 1086 

p. Goddard 1069 

i. Jones 1513 

n. Toledo, &c. By. Co. 1494, 

1652 

Duff p. Hoffman 1222 

Duffy ». Baker 1448 

v. Brady 1600 

i'. McManus 1588, 1600 

Dufolt v. Gorman 279 

Dugan v. Brophy 1235, 1236 

Dugge v. Stutnpe 1101 

Duke p. Balme 1068, 1086 



3igitiz eC by GOOgle 



TABLE Of OASES. 



Refer 



Dukei tr. Turner 1108,1117,1125 

Dunbar v. Raw lea 820 

Dancan v. Bateman 1323 

v. Berlin 97 

Duncan v. Koster S3S 

e. Louisville 1119 

Duncans v. Stone 820 

Dangan r. Dollm&a 1S08 

Dunhaia v. Hanos 787 

tr. Johnson 1 748 

v. Pettee 973,1002 

v. Railway Co. 1625 a 

Dunkeroon, in re 384 

Dankin v. Vandenbergb 217 

DonkJee ». Crane 1439 

v. Falee 13 

v. Locke 162, 220 

Duolap, The 1308 

Danlap b. Aycock SS7 

*. Burnett 10S9 

e. Burnbam 194 

v. Shanklln 1116 

v. Thome 909 

Dunn s. Kanmacher 1286 

D . McKee 1596 

t. North Mo. R. R. 1879,1318, 

1623 

d. Rankin 1220,1293 

Dnnniog o. Clarke 1611 

*. Galloway 285 

o. Steams 817 

Dunpbj v. Riddle 1563, 1571, 1580 

Dunton tr. Outhouse 1081, 1063, 1064, 

1102 

Dnnwell v. fiidwell 1SS8 

Dnplantier v. Wilkins 620 

Dnpont ». Vance 810 

Uupny p. Leavenworth 799 

Darette v. Briggs 1086, 1090 

Dnrgr Cement & Umber Co v. 

O'hnen 876, 884, 965 

Darrea v. Burt 787, 796, 797, 798 

Ousenbui-y v. Mayor 14S7 

Duitan p. McAndrew 802 

Dustine. Crosby 1247 

11 -'--- " ' 669,572,398, 

624 



E. A. Baisley, The 1688 

E. A. Barnard, The 1681, 1632, 1683, 
1686, 1774,1776,1777 
Eagleson b. Clark 1816 

Eames v. Mayo 559 

Earle v. Burch 1108 

v. Marx 1101, 1102 a 

Early v. Albertaon 1390 

v. Burt 1201 

Eaattr. Ferguson 419, 731, 1009 

East Line, &c. H. R. Co. r. Cul- 
berson 1586 
Easter tr. Goyue 646, 891, 892 a 
Eastern Star, The 1799, 1805 
Eastman tr. Newman. 1215 
Easton, ex parti 1677,1719 
Easton r. Smith 187 
Eaton v. Bell 478 
v. Cook 870, 879,910, 931 
v. Trneadail 450 
Eberhardt v. Schuster 198, 206 
Eby v. Schumacker 886 
Echols v. Head 811 
Ecketr. Feteer 1161 
Eckhard v. Donobne 105, 673, 690 
Edan v. Dudfield 818 
Eddy, The 268, 284, 311, 313 
Edgar tr. Salisbury 1328, 1364, 1365, 
1409, 1419 
Edgar Baxter, The 1798 
Edgerly v. The San Lorenzo 1738 
Edith, The ' " 



Batcher p. Culver 



Dnthie r. Hilton 

Datro v. Wilson 1257, 1272, 1280 

Dntton n. N. E. Mut. F. Ins. Co. 

1010, 1519 
Dwenger v. Branigmn 1039, 1098 

Dwight v. Newell 96 

Dye r. Forbes 1392, 1497 

Dyer tr. Clark 796, 799 

tr. Grand Trunk Ry. Co. SSI 

v. Martin 1063 



1729, 1730 



1084 

Edmonson tr. Phillips 1100 

Edwards v. Brewer 860, 878, 884, 

935 

v. Derrickson 1216, 1841 

1368, 1425, 1429, 1632, 

1678 

t>. Edward! 1101, 1102, 

12B0, IS19 

tr. Elliott 1722, 1724, 1725, 

1728, 1755, 1779 

tr. Fairbanks 620 

Edwin Post, The 1677 

E. E. Barnard, The 1716 

Eean v. A Cargo of Spruce Lath 

808, 811 
Ege v. Ege 652, 572, 698 

Ehlers v. Elder 1532, 1533 

Eichelberger tr. Oitt 1110 

Einstein v. Jamison 1260 

Eisenbeia v. Wakeman 1326, 1614 
Eisner f. Avery 202 

lli 



3igitiz eC by GOOgle 



TABLE OF CASES. 



Reference to Sections. 



Elder v, Clark 1437 


Epley v. Scherer 


1287, 1594 


v. Jones 1093 


Equitable Life Ins. Co. 


v. Slye 1201, 


Eledona, The 1679 


1S85, 1457,1463 a, 14 70, 


Elexena, The 1783 a, 1810 a 




1626 


Elin, The 1781a 


Eras tins, The 


J717 


Eliza, The 1777 


Erickson v. Smith 


1072 


Eliza Jane, The 1684, 1686, 1799, 


Ericsson v. Brown 


25, 1365, 1639 


1800 a 


Erie, The 


1704 


Eliza Ladd, The 1728, 1723a 


Erinagh, The 
Ermufo. Eullok 


1715 


Elzln v. Hsrvy 811 


1257 


Ella B., The 1756 


Ernst v. Reed 


1543 


Ellenwood v. Burgess 1252, 1288 a, 


Ervin tr. Oregon Ry. fc NaT. Co. 87 


1458, 1S34 


Escher p. Simmons 


1080 


Ellershaw v. Magaiac 8SS, 913, 916 


Essllnger v. Hoebner 


1362, 1325, 


Ellett v. Tyler 1488 




1834 


Etlinwood it. Worcester 1207 


Esteban de Antonano, 


The 1686, 


Elliott o. Atkins 116, 288 




1707, 1713 


v. Bradley 465 
v. Edwaraa 1090 


Estey v. Cooke 


699 


Etter v. Edwards 


484 


v. Cox 461 


Ettridge ». Bassett 
Eubank v. Poston 


1458 


v. Plattor 1071 


1092 


Ellis o. Hunt 806, 857, 8S8, 883, 939 


Enfaula Water Co. v. 


Addyston 


tr. Martin 454 


Pipe & Steel Co. 1309 e, 1837, 1330, 


v. Porter 1276 




1344, 1378 


v. Siugletsry 1081, 1086, 1090, 


European Bank, in rt 


244, 247 


1098 


Evans v . Bailey 


436 a 


Ellison v. Jackson Water Co. 1184 


d. Billingsley 


603 


Elmore v. Robinson 993 


». Bryan 
«.Enioe 


78 7 


Ely v. Cook 322, 233 


1110 


o. Ehle 988 


b. Feeny 
v. Goodlet 


1100, 1127 


v. Wren 1272 


1074 


Embree t>. Fowler 1520 


c. Grogan 


1500 a 


Emdin v. Darley 215 


v. Herring 


571,573 


Emerson e. Gainey 1421 


v. Nichol 


907 


v. Hedrick 751 a, 778 


v. Railroad Co. 


1378, 1618 


Emig t>. Cunningbam 561, 562, 565 


Evansvllle r. Page 


1201, 1570 


Emigrant Industrial Sav. Bank v. 


1370 


Goldman 1218, 1581, 158! 


Evansville 6c Crawfordsville R, R, 


Emily Bonder, The 1686, 1688, 1699, 


Co. v. Marsh 


800 


1713,1775, 1794 


Evansville Nat Bank 


i>. Metro 


Emison v. Risque 1063, 1102 
o. Whittlesey 1086, 1087, 


politan Nat Bank 


384 


Everett v. Coffin 


1020 


1090 


v. Neff 


591 


Emma L. Coyne, The 1804 


v. Saltus 


304, 987, 1019 


Emma Silver Mining Co. (lim- 
ited) v. Emma Silver Mining 


Everman r. Robb 


342 


Ewart v. Stark 


513 


Co. 196 


Ewing v. Barns 


1421 


Emmert v. Reinhardt 613 


v. Fobom 1389, 1334, 1396 


Endnerv. Greco 1677 


Exchange & Deposit 


Bank v. 


Engfer c. Roemer 1135, 1279 




1082 


England e. Beatty Organ Co. 1660 


Exeter, The 


1778 


English u. Duncan 619 


Everman v. Mt. Sinai Cem. Ass. 


v. Russell 1107 




1612 


v. Sill 1318, 1498 


Eyler v. Crabbs 


1100 


Enoise. Curry 214,217 


Eyre, export* 
Eyre v. Sadleir 


254 


Entwistle, tnre 61 


1084 


E. P. Dorr, The, p. Waldron 1742 


Eystra i>. Capelle 


1262 


xtii 







jipismb, Google 



TABLE OF OASES. 
Reference to Section*. 



Fagan v. Bovlo Ice Machine Co. 1557 
n. McWhirter 110! a 

Fahnestock t>. Wilson 122! 

Fain v. Inman 1082, 1099 

Fairbanks o. Devereaox 191, 217, 

S18, 222 

v. Eureka 830 

v. Sargent 44 

Faith v. Eaat India Co. S7S, 323, 

S27 
Pales v. Roberts 820 

Falk, ex parte 893, 062, OSS 

Falkner r. Colahear 1262 

Fanning p. Krapfl 1663 

Fanny, The 1676, 1776, 1777 

Farina v. Home 905 

Fanneloe v. Bain 823, 841 

Farmers' & Merchant!' Bank 0. 

Watson 375 

Farmers' Bank t>. Iglehart 879, 888, 
391,416, 417 
v. Window 1461 

Farmers' Loan & T. Co. v. Cand- 
ler 1619 
Farmilotr. Stiles 1262 
Farnet r. Creditor! 620 
Faruum v. Boutelle 431, 462, 464 
Farral) v. Railroad Co. 267, 884, 966 
Farringtoo v. Meek 731 
FarweU v. Grier 685 
v. Murphy 1679 
Fathman Planing Mill Co. 0. Bit- 
tar 1328, 1689 
Fatont tt. School Commissioners 1875 
Faugh t v. Henry 1128 
Faver v. Robinson 1086 
Favorite, The 1706, 1794 
Fnwell v. Heelii 1061, 1082 
Fay r. Orison 1290 
Fein v. Davie 1691 
Feise v. Wray 801, 850, 861, 868, 
878, 881 
Feiavary v. Broesch ' 648 
Felice B., The 1706, 1792, 1796 
Felkner o. Tighe 1106 
Felton r. Minot 1207 
r. Smith 1088, 1119 
Fenton v. Logan 663 
Peru, The 1748 
Ferguson v. AshbeU 1404, 1656 
v. Harty 
r. Herring 
v. Miller 1467 
tt. Shepherd 1070 
Ferguson Lumber Co. v. Low 751 



Fernwood Masonic Hall Asso. 0. 

Jones 676, 832 

Ferran t>. Hosford 1724 

Ferris tt. The E. D. Jewett 1708 

v. Van Techten 1179, 1180 
Ferriss o. Schreinet- 699 

Ferry Co. 0. Been 1729 

F. £. Spinner, The 1686 

Fetter v. Field 811 

v. Wilton 1203, 1261, 1262, 

1263, 1264, 1271 

Field 0. Colnmbet 11S4 

e. Lelean 851 

v. The Mayor 43 

Fielding* e. Mill! 1005 

Fields t>. Carlton 1141 

Fietnam v. Kropp 1066, 1069 

Fife o, Iiring_ 585 

Fillmore v. Wells 171 

Finance Co. v. Charleston C. & C. 

B. B. Co. 122, 122 a, 128 

Finch p. Hull 1163 

v. Bedding 1682 

Findley v. Armstrong 1107, 1110 

Findon v. McLaren 564 

Finlayson 0. Biebighaoier 1209 

v. Crooks 1209,1617 6 

Finley's Appeal 1260, 1269 

Finney t>. Harding 654, 576, 614 

Firmenich v. Bovee 222 



,.Day 



1494 
432 



1201 
First Nat. Bank o. Hartford Life 

& An. In!. Co. 379, 382, 411 

Fint Nat. Bank v. Pettit 946 

v. Redman 1350, 1490 
v. Salem Flour 

Mills 1068, 1098 

v. Whitman 67 

Fiichel v. Keer 626 

Flab v. Howland 1080, 1086, 1087 

v. McCarthy 1239 

v. Stubbing! 1199 

Fish Creek Boom ft Log Driving 

Co. v. Weed 730 6 

Fishell v. Morris 21, 641, 697 

Fisher k. Abney 1101 

e. Brown 1106 

v. Cockerill 1144 

v. First Nat Bank 482 

o. Johnson 1069,1092 

v. Kollerti 570, 619 

v. Oakaloosa 176 



3igitiz eC by GOOgk 



TABLE OF OASES. 



Reference to Section*. 



Fisher v. Rush 1282, 1582 

v. Shropshire 1076 

v. Smith 973, 1004 

v. Willing 1706 

Fisk v. Newton 284 

r. Potter 1063, 1071, 1076, 1080, 

1674 

Fiike v. Judge 685 

Fitch v. Baker 1257, 1260, 1270, 

1271, 1313 

v. Cornell 1134, 1146 

v. Crelghtou 101, 1042 

v. Newberry 292, 238, 304, 305 

v. Snedaker 490 

e. Steagall S84 

Fitchett v. Canary 701 

Fitzgerald v. First Presbyterian 

Church 14S3, 1495 

v. Fowlkes 625 

p. Stewart 48 

». Thomas 1S35, 1312, 

1313, 1328, 1370, 1597 

Fltihugh ii. Bank of Shepherds- 

ville 376 

v. Maxwell 1126 

ii. McKinney 217 

Fitipatrick r. Allen 1313, 1318 

v. Flacnagau 787, 788, 

789, 791, 792, 794 

n. Thomas 1310, 1812, 

1313, 1828 

FitzsitnuioiiH tr. Howard 603 

Flack v. Charon 791 

Flaherty v. Doane 1700, 1704 

Flanagan u. Cuahman 1061, 1063, 

1098 

i'. Shuck 798 

Flandrean v. White 1962 

Flannery o. Rohrmayer 1262, 1271 

Fleece v. O'Rear 1069, 1090, 1093 

Fleiti n. Vickery 1257 

Fleming v. Bnmgaraer 1202, 1488 

v. Kerns 1202 a 

v. St Paul City Ky. Co. 1422 

Fletcher v. Morey 63, 93 

Flexner v. Dickenon 

Flinn v. Barber 

Flint v. Bawlioga 

t>. Raymond 1444 

Flint v. Van Onsen 
Floraheim v. Holt 1243 

Flour Citv Nat Bank t>. Garfield 1 
Flournoy r, Shelton 751 a, 776, 7 
Floyd v. Harding 111 

Flynn v. Lemieux 1142 

Foerder v. Wesner 1286, 1366 

Fogarties v. State Bank 
xliv 



Fogarty v. Wick 
11 — i. Rogers 
>. St. Loan 



1218, 1454, 1614 
1116 
mis, &c R. R. Co. 8* 
Follett v. Reese loss 

Folmsx c. Copeland 
Fonda ». Jones 
Foot, in re 
Foot v. Tewksbory 
Forbes v. Electric Co. 

». Marsh I 

r. Willamette Falls Elec- 
tric Co. l: 
Forbush v. Leonard 166, 
Fores v. The Pride of the Ocean 
17810,1 
Ford v. Holton 
v. Smith 
v. Thornton 
v. Wilson 
p. Yates 
Ford ham's Appeal 
Forrester tr. Preston 
Forshaw, in re 
Forstman v. Sehnlting 187, 198, 233 



1086, 1090 
863, 940 
198, 196 



1141 

IMS, 1100 

241, 24G 

1320 



Forsythe 
Forth v. Simpson 
Forwood v. Dehoney 
Foshay ». Robinson 
Foster, ex parte 
Foster r. Colby 



155, 161 
21, 644 
1119, 1120 
1299, 1513 
10, 12, 13 
273, 32! 
1313, 1316 
v. Dohle 1213, 1304, 1329 

v. Fowler 1375, 1878, 1618 
v. Frampton 919,940,941,942 
r. Hoyt 447 

v. Juniata Bridge Co. 484 

v. McGraw 1308 

v. Napier 603 

v. PoQlon 1588 

v. Powers 1101 

v. The Richard Bniteed 1725, 

1748, 1807 

v. Schneider 1218, 1408, 1411 

v. Westmoreland 60S 

v. Wulfing 1417, 1575 

Fonch tr. Wilson 1080, 1086, 1083 

Foulks v. Reed 1083 

Fourth Avenue Baptist Church 

r. Schreiner 1221 

Fourth Baptist Church v. Trout 1434, 
1603 
Fourth Nat Bank t>. American 

Mills Co. 433, 480 

Fourth Nat Bank v. City Nat 

Bank 245, 24E 

Foushee v. Grigsby 1S03, 1367, 

146S 



3igitiz eC by GOOgk 



TABLE Of CASES. 



Inference to Section*. 



Fowler v. Hawkins 047 

o. Lewi* 147, ISS, 166, 18a, 

929, 230 

o. M'Taggart 910,911 

v. Mutual Life Ids. Co. 1161, 

1581 

p. Parsons SSI, 434, 1020 

p. Rapley 555, 576a, 581, 

062, 609 

p. Rust 1088 



». Fox 



553, 309 
285 



r. Fra*er 

p. Holt 1682 

o. Jackson 202 

v. Jones 610 

p. Kidd 1218 

p. McGregor 335, 499, 503, 504, 

518, 525, 641 

p. Nachtaheim 1559 

v. Seal 1665 

v. Willi* 965 

Foxcroft r. Devonshire 418 

Frail v. Ellis 1090 

Fralick v. BetU 1780, 1756, 1810 

Frampton p. Blume 1164 

France v. Woolston 1194, 1361, 1421 

Frances, m re 901 

Francis, The 1691 

Francis v. Clemow 1163 

d. Saylea 1276, 1280 

p. Webb 196, 203 

p. Well* 1063,1094 

Frank G. Fowler, The 1 776, 1 762, 

1783 

Frank r. Chosen Freeholders 1216, 

1966, 1370 

Frankfort Turnpike 

Churchill 

Franklin ». Meyer 408, 080, 566, 

1013 

Franklin F. In*. Co. v. Coatee 1906, 

1283, 1341 

Franklin Say. Bank v. Tayli 

1671, 1578 
Franklin St. Church Trustees p. 

Davis 1427 

Fratchieris p. Henrique* 
Fruer v. Davie 

t. Witt 857, 918, 929 

Fruer p. Barlow 1601 

». Hillis.nl 944 

v. Jackson 376 a, 517 

Fruier tr. Hendren 1116 

a. Thomas 



Freeman, The, p. Buckingham 1690 
Freeman v. Canon 1039 

v. Cram 1218 

p. Gilpin 1361 

p. Nichols 811,814 

u. Schroeder 1459 

p. Shreve 148 

o. Stewart 787, 788, 769 
Freeson p. Bissell 1127 

Frei broth v. Mann 1199 

French v. Baoer 1290, 1294 

v. Dickey 1098 

Fresno Canal Co. d. Dunbar 80 

Fret* p. Bull 1798 

Frick v. Htlliard 620 

Friedman t>. Roderick 1490, 1496 

Frink p. Pratt 076 a ' 

Frisbey p. Thayer 077 

Frissell v. Haile 109, 163 

Friswellp. King 120 

Frith v. Forbes 06, 61, 428 

Front St Cable Ry. Co. v. John- 
son 1624, 1672 
Frost p. Dentsch 463 
it. Haley 107 
Frothingham e. Jenkins 270, 820 
Fruin v. Mitchell Furniture Co. 1570 
Fry v. Breckinridge 571 
p. Chartered Mercantile Bank 

274 

p. Jones S79 

v. Prewett 1064 

Ftdlenwider v . Longmoor 1286, 1290, 

1882, 1394 

Fuller v. Bradley 276, 320 

v. Kitchens 781 

p. Nickeraon 1327 

Fullerton p. Leonard 1815, 1408 

Fnllerton Lumber Co. p. Osborn 

1012, 1013 
Fulton Iron Works p. North Cen- 
ter Creek M. & S. Co. 1486, 1697 
Funk p. McKeonn 1106 

Fnqoay p. Stickney 1255, 1276 

Furbush p. Chappell 06T 

Fnrguaon p. Burk 1287 

Furnissp. Hone 814 

Furr p. Morgan 1099 

Fury p. Boeckler 1574 



Gaar p. Millikan 1083 

Gable p. Preachers' Fund Society 

1979, 1040 
Gaddia v. Howell 1750 



ioogle 



TABLE OP (USES. 



Reference to Section* 



Gafford d. Steam* 


Ml 


Gager v. Watson 

Game a v. Buford 


158, 217 


1144 


v. Keeton 


586 


v. Lizardi 


1146 


v. New Orleans 


1146 


v. Travis 


205 


Gaither v. Stockbridge 


591, 822 


Galbraith d. Reeves 


1105 


Galbreath v. Davidson 


1235 


Gale's Succession 


620 


Gale v. Blaikie 


1442, 1542 


Galena fir Chicago Union 11. R. 


Co. v. Rae 


262 


Gallagher's Appeal 
Gallagher v. Mars 


78S 
1068, 1064 


Galland, in re 


124, ISfi 


Galland v. Schroeder 


1440 


Gallup v. Perue 


184 


Galveston Railroad v. Cowdrey 1457 


Galyon i'. Ketchen 


1041 


Gambling t>. Haight 


1527 


Gammon v. Chandler 


165, 19S, 194 


Gann v. Chester 


1081 


Gauo v. Chicago & N 


W. Ry. 



Co. 



217 



Ganseford v. DutUlet 
Gantner v. Kemper 1307 

Garbettv. Veale 787 

Gardenville, &c. k Loan Asao. v. 

Walker 1167 

Gardner v. Hall 1006, 1019, 1524, 
1586 
v. London, a ft D. Ry. 

Co. 1670 

o. Trechmann 374 

>.-. Tudor 884 

Garland, The 1806 a 

Garland v. Hickey 719 a, 1044 

v. Hull 70 

Garner v. Cutting 558, 601, 616 

v. Garner 190, 280 

v. Gladwin 230 

Garnett v. Berry 1262, 126S, 1287 

Garr v. Mairet 184, 187 

Garretaon o. Creditors 620 

Garrison v. Moouey 1387, 1801 

Garroutte v. White 626 

Garion v. Greene 1064, 1074 

Gaskell v. Beard 1318, 1408, 1412 

Gaekill v. Davis 1276 

it. Moore 127S 

u. Trainer 1272, 1273 

Gaston ». White 1130 

Gates v. Brown 1400 

p. Parrott 668 

v. Whitcomb 1354 

xlvi 



Gaty v. Casey 1199, 1559, 1557 

Gaul p. Bllyeau 1267, 1272, 1850 

v. Deming 1169 

t>. Wlttman 1405 

Ganaa k. Bullard 111 

v. Richardson 608 

Gauss ti. Hussmann 1828, 1412, 

1481, 1017 

Gay v. Brown 1265 

v. Hardeman 806, 811, 618 

v. Hervey 1373 

v. Nash 457 

Gaylord v. Knapp 1080 

c. Loughridge 1184, 1185, 

1859 

Gaytes 0. Franklin Savings Bank 1080 

Gazelle, The 1811 

Gazelle, The, v. Welle Lake 1358 

G. C. Morris, The 1704 



Gee v. Gee 1153 

». McMillan 1063 

Geiger if. Hussey 1187, 1387 

Geias v. Rapp 1434 

General Burnside, The 1681, 1773, 
1773, 1776, 1779, 1794 
General Cass, The 1677 

General Jackson, The 1798, 1799 

General Meade, The 1808 

General Smith, The 1680, 1720 

General Tompkins, The 1699 

Geneva, Ithaca ft Sayre K. R. 

Co. v. Sage 317, 701 

Gentry o. Walker 1128 

George o. Elston 310 

v. Everhart 1060,1616 

v. Stubbs 820 

v. Tufts 820 

George S. Wright, The 1713 

George T. Kemp, The 1682, 1688, 

1711 

Georgia, The 1698 

Gerard v. Birch 1216 

Gere v. Cashing 1203, 1532 

German Bank v. Schloth 1801, 1393, 

1495, 1499, 1583 

German Luth. Church v. Heiae 

1206, 1417, 1435, 1437, 1400, 
1519, 1609 
German Nat. Bank t>. Elwood 1073 
German Security Bank v. Jeffer- 
son 398, 400 
Germania B. ft L. Asao. v. Wagner 

1190, 1438, 1481, 1483, 1511, 
1053, 1613 
Germania Savings Bank App. 1260 



lOOgle 



TABLE OF OASES. 



ReJerenco to Section*. 



Getchell v. Allen 1201, 1457, 1462 a, 

1626 

v. Clark 155, 168, 193, 196 

t>. Moran 1513, 1400 

Getto it. Friend 1247, 1470 

Getty d. Tramel 1264 

Gejer v. Western In*. Co. S77, 880, 

998,396,409,417 

G. F. Brown, The 1779 

Ghio v. Shutt 638 

Giant Powder Co. v. Flame Co. 1190, 

1447, 1574 

v. McCoy 1664 

d. Oregon Pac. 

By. Co. 1616, 

1629 a, 1624 

Gibbea, exparte 917, 962 

Gibbs v. Grant 145S 

u. Hanchette 1408 

Gibert o. Peteler 1198 

Gibson ». Carrathers 858, 881, 902, 

911 

». Gander 540, 551, 552, 553, 

560, 573, 690, 609 

v. Lenane 1286, 1287, 1299 

v. Nagel 1556 

u. Stevens 460, 787 

v. Stone 51, 52 

GMdena r. Boiling 60S 

Gidding* o. Green 1101 a 

Gihon v. Frjat 217 

Gilbert t>. Fowler 1207 

tr. Greenbaom 553, 676, 591, 

616 

v. Marshall 1053 

v. Thaip 1201 

Gilbert Knapp, The 1713 

Gilchrist v. Anderson 1290, 1512 

Gilcrest v. Gottschalk 1521, 1532 

Giles v. Comstock 671 

v. Ebsworth 562, 585, 622 

v. Perkins 241 

Gilkison v. Middleton 326 

GUI v. Balis 84 

v. Patten 1134 

Gillon v. Hubbard 1613 

Gillespie v. Bradford 145S, 1487 

v. Remington 1692, 1596, 

1600 

Gilliam v. Tobias 693 

Gillingham v. Charleston Tow 

Boat 1699 

Gilman v. Brown 1069, 1064, 1075, 

1100, 1107 

■>. Dingeman 1092 

v. Disbrow 1262, 1269, 1264 

*. Elton 564 



Gilman v. Gard 1200 

Gilson v. Gwinn 278, 904 

Girard Point Storage Co. r. Biehle 

1599 
Girard Storage Co. v. Sonthwark 
Co. 1910, 1912, 1878, 

1379 
Gisbonrn t>. Hnrst 262 

Gist tr. Ilanley 116, 170, 232 

Gittings v. Nelson 542, 568 

Given v. Alexander 



Givens v. Easier 



603 



Gladstone v. BLrlay 1, 4, 20, 31 

Glass v. Freeberg 1470 

v. St. Paul Carriage Co. 1313, 
1589 
Glace t7. Watson 1094, 1101 

Gleason v. The Sheriff 620 

Glendon Co. r. Townsend 1546 

Glenm&nna, The 287 

Glenmont, in r« 1689, 1661, 1722 

Globe, The 1676, 1776 

Globe v. The Detos De Wolf 1772 
Globe Iron Roofing Co. v. Thach- 

er 1459, 1454 

Globe Works t7. Wright 744 

Gloucester Ins. v. Younger 1698 

Glyn v. East & West India Dock 

Co. 898 

Gnash s. George 1088, 1090 

Goddard o. Trenbath 189, 238 

Godeffroy v. Caldwell 1869 

Godin v. London AssTjrance Co. 418, 
466, 582 
Godti v. Hose 830 

Godwin tr. Collins 1063 

Gteing tr. Outhouse 583 

Gcell ». Morse 641 

Gcembel o. Araett 791 

Ga;pp v . Gartiser 1318, 1491 

Goff ». Papin 1494, 1495 

Gogin r. Walsh 1207, 1286 

Goldheim t>. Clark 1244, 1313, 1542 
tiolding, exparte 958, 960, 963 

Good, ex parte 468 

Goodall v. Skelton 808 

Goodbar tr. Cary 762 

Goodbnb if. Hornnng 1200, 1558 

Goodfellow t>. Manning 1238 

Goodhart n. Lowe 860 

Goodin v. ElleardsriHe Hall Aaso. 

1843,1884, 1387 

Goodman v. Pence 1494 

t>. Stewart 262 

f . White 1579 

Goodrich t>. Bodley 564, 620 

xlvii 



3igitiz eC by GOOgk 



TABLE OF CASES. 



Reference to Section*- 



Goodrich v. McDonald 153, 18S, 186 




209, S3] 


v. Willard 


641 


Goodrow v. Buckley 
Goodwin v. Scannell 


712 


825 


Good wine v. Morey 


1127 


Gordon p. Bell 1068 


1088, 1104 


v. Correy 


889 


v. Deal 1392,1897,1594 




1593 


v. Diggs 


993 


v. Kearney 


257 


v. Manning 


1075 


p. Rixey 




v. Torrey 1429, 


1439, 1470, 


Gordon Hardware Co. v. Railroad 


Co. 1394, 1896 


1412, 1449 


Gorgas r. Douglas 
Gorman v. Judge 


1310, 1311 


1385 


v. Signer 


1501, 1919 


Gortemiller o. RoMngam 


1243 


Gosline v. Thompson 


1562 


Gosling v. Birnie 


828 


Gobs v. Helbing 


1341 




1045 


». Strelitz 


1307, 1455 


Gossler v. Scbepeler 


869, 872 


Gould i>. Jacobsoo 


17J0, 1749 



v. Wise 1238, 1295, 1276, 1872 
Goulding v. Smith 1449 

Gourdier v. Thorp 1899 

Gove v. Gather 1882 

Grace Greenwood, The 1794 

Grace v. Shively 632 

Gracie v. Palmer 273, 1690 

Graf v. Cunningham 1299, 1513 

Graham v. Dyster 478 

v. Holt 1532, 1535, 1565 

v. M. & Sterling Coalroad 

Co. 1378,1618, 1619, 
1648 
v. Meehan 1199 

v. Smith 934 

Grand Rapids Chair Co. v. Run- 
nels 71 S 
Grand Turk, The 1706 
Granite State, The 710, 744, 1465, 
1793, 1794 
Grant's Appeal 632, 633 
Grant's Case 150 
Grant v. Hazeltine 196 
v. Mechanics' Bank 379, 391, 
393 
v. Poillon 1697 a 
v. Strong 1519, 1520, 1524 
xlviii 



242, 243, 295 
1614 

p. Whitwell 104, S62, 853, 566, 

577,581, 562, 616 

G rape n gather tr. Fejervary 1063 

Grapeshot, The 1679, 1688, 1696, 

1699, 1756,1773,1779, 

1781,1781a, 1782, 1797, 

1802 

Grass Lumber Co. p. Rogers 1585 

Gratitude, The 1781, 1781 a, 1801 

Graves v. Bemis 1207 

t>. Coutant 1063, 1082, 1083, 

1098, 1099 

b. Eades 234 

v. Graves 1164 

v. Pierce 1885, 1384, 1389, 

1386, 1418 

Gray v. Baird 1067 

v. Carleton 108, 1240 

v. Can- 274 

v. Dick 1222, 1416 

v. Dunham 1600 

o. Sibling 1436 

v. Havemeyer 1617 a 

v. Holdship 1384, 1387 

v. I.awson 309, 212 

v. Pope 1261 

d. Rawson 566, 618 

v. VorfaU 14S4 

v. Walker 1224, 1152, 1253 

v. Wilson 590, 6S3 

Great Northern Ry. Co. v. Swaf- 

field 281, 288, 332 

Great West, The, v. Oberndorf 378 
Great Western Manuf. Co. t>. 

Hunter 1236, 1329, 1340, 1493 

Great Western Planing Mill Co. r. 
Bormans 1488 

real Western Ry Co. ex parte 266 
Great Western Ry. Co. v. Crouch 333 
Greeley it. Harris 1656 

Green v. Belts 1119, 1126 

Biddle 1182, 1133 

Green v. Campbell 270 

v. Clifford 1574, 1576 

v Demoas 1082, 1093 

tr. Farmer 15, 16, 17, 418, 731, 
73! 
e. Fox 1002, 1010, 1635 

v. Homestead F. Ins. Co. 1541 
u. Jackson Water Co. 166! 

v. Jacobs 548 

v. Putnam 1151 

v. Sanford 1572, 1585 

v. Southern Express Co. 1 73, 
310 



3igitiz eC by GOOgk 



TABLE OF OASES. 



Referent* to Section*. 



1469, 1614 
1108 
1417 



Green p. Sprague 
Greene p. Cook 

p. Ely 

•.Fan] 

Greenfield v. Mayor 1S3 

Greenleaf p. Beehe 1360, 1364 

Greeno v. Barnard 1063 

Greenongh v. Nichols 1228 

p. Wiggington 1260,1270 

Greenway r. Turner 1S29, 1437 

Greenwood c Harris 1404, 1408 

Greer p. Church 820 
Gregory F. Morris 29, 816, 817 

u. Stryker 731 

Gregion, in re 131 

GreldsT'i Appeal 693 
Greye p. Dunham 928, 937, 929, 935, 
987, 96G 

Greyitle v. Browne 1163 

fire war r. Alloway 1348 

Greye. Vorhis 1452 

Grice o. Richardson 832, 862 

Gridley u. Garrison 317 
p. Sumner 1193, 1286, 1287 

Grieff p. Cowguill 418, 468 

Grid's Appeal 1318, 1490 

Griert. Cowan 671 

Griffin s. Chadboarae 718 

Griffith i'. Back 791 

Griffiths r. Perry 829, 838, 832, 861 

Griggs p. Stone 1216, 1386 

p. White 183 

Griggiby e. Hair 1092 

Gring v. Cargo of Lumber 808 

Grinnell p. Cook 499, 503, 504, 609, 

513,581,641, 781, 736 

ft Suydam 34, 62 

Griswold v. Bragg 1133, 1140, 1143, 

1144, 1145 

v. Carthage 1494 

Gritton p. McDonald 1074 

Grade r. Van Valen 1173 

Gross, in re 251 

Grow p. Bartley 625 

v. Daly 1543 

v. Eiden 721, 736 

Growenor v. Phillips 461, 465 

Groth u. Stahl 1363 

Gnat* Hill 867,865 

Grove v. Brian 460 

s. Miles 1108,1118 

Growning p. Behn 1079 

Grabb p. Crane 1098 

Gmbbsp. Wysors 1120, 1132 

Grnhn v. Richardson 1093 

GrtudeU p. HartweU 1199 

Ganger p. Barnes 1138 



Guelich p. Clark 1164 

Guernsey p. Reeves 1287 

Guerrant p. Dawson 1586 

Guesnard p. Louisville & Nash- 
ville K R. Co. 290, 451 
Guest p. Opdyke 627 
v. Water Co. 1375,1878 
Guiding Star, The 1698, 1699, 1722, 
1729, 1780, 1758, 1772, 1773, 
1775, 1793 a, 1794, 1795 
Guild e. Bonier 230 
Guilford p. Smith 307, 9-31, 933, 942 
Guise Oliver 778 
Gumbel p. Beer 80» 
Gump p. Showalter 646, 676 
Gunn p. Barry 109, 1145 
p. Bolckow 832, 836, 852, 653 
Gunter p. Beard 1127 
p. Da Bosc 603 
Garner p. Behrend 895, 646, 652 
p. Crockett 1715 
p. Sharp 438 
v. Walshim 1223 
Gustlne v. Phillips 885 
Guthrie p. Homer 1332 
Guy, The 1681, 1808 
Guy p. Carriere 1247, 145ft 
v. Du Uprer 1389 
Gwathmey p. Etheridge 457 
Gwin p. Selby 788 
G * vn p. Richmond ft Danville R. 

R. Co. 873 

Gwynne, ex parte 835, 886, 861 



Haag p. Hillemeier 121ft 

Hackett p. Badean 1252 

Hadden p. Knickerbocker 565, 577, 

614 

p. Powell 60S 

Haddow v. Lundt 1180 

Haden p. Buddecsiek 1218 

Hadley p. Nash 1109, 1119 

p. Pickett 1080 

Haeussler p. Mo. Glass Co. 1387 

p. Thomas 1463 a, 1469, 

1478 

Hagan p. Missionary Soc 1294, 1397 

Hagar p. Union Nat. Bank 375, 384, 

891 

Haggerty v. Palmer 41, 820 

Hague p. Dandeson S91 

Hahn's Appeal 1469 

Haifley o. Haynes 712, 1048 

Height o. Hofcomb 184, 214 

xlix 



3igitiz eC by GOOgle 



TABLE OF CASES. 
Kttfenaca to Section*. 



Haille «- Smith 4GB, 869, 880 

Haiuea v. Chandler 1199 

Hale c.Baker 1107,1114 

v. Barrett 973 

v. Brown 734, 725 

d. Burlington, Cedar Rapids 

& N. Ry. Co. 1621,1522, 

1544 

r. Burton 571 

c. Omaha Nat. Bank 95, Ml, 

819 

Balff v. Allyn 802, 917, 9S1, 929, 



Half Moon, The 



936 



1807 

JBall v. Acken 1389 

p. Amos £62 

p. Aver 184, 212 

v. Banki 1301, 1304 

v. Boom Co. 743 a 

p. Bunte 108 

d. City of Buffalo 56 

r. Click 1119 

v. Hall 1041, 1003 

v. Hinckley 1469 

d. Hudson 1697 a 

v. Jackeon 426 

v. Johnson 1211, 1607 

■v. Mobile & Montgomery By. 

Co. 1110, 1111, 1119 

p. Mullanphy Planing Mill 

Co. 1464, 1478, 1479 

to. Ody 216 

v. Parker 1282 

p. Pettigrove 1619 

v . Pike 005 

b. St. Louis Manuf. Co. 1335, 

1385, 1464 

o. Scovel 1066 

v. Sheehan ISIS, 1317 

o. Spaulding 1216, 1456 

v. Steveni 1808 

v. Tittabawaaaee Boom Co. 712, 

738, 1021, 1025 

Hallagan v. Herbert 1455, 1589 

Hallafaan v. Herbert 109, 1251, 1257, 

1498, 1495.1558 

Hallett v. Bonsfield 288, 461 

v. Unllett 89, 1163 

Halley a. Alloway 1346 

Hattiday r. Hamilton 946 

Hillock v. Smith 1090, 1096 

Hallowell p. Fawcett 476 

Halpin v. Hale 727 

Halley, in re 202 

Hamblen p. Folta 1092 

Hamburger p. Rodman 801,802,834, 

841,847, 852, 962 

1 



Hamilton v. Buck 
t>. Gilbert 



1098 



p. McLaughlin 701 

p. Naylor 1200 

v. Reedy 552, 567 

v. Schwehr U61 

p. Williford 1240 

tr. Windolf 622 

Hamlett p. Talhnan 542, 589 

Hammersmith tr. Hilton 1568 

Hammet p. Linneman 315 

Hammond v. Anderaon 832, 836, 962 

v. Danielaon 8, 744 

p. Harper 806 

Peyton 1063, 1092 

Shephard 1658,1563 a 



>. Will 



614 



Hammonds p. Barclay S, 10, 431, 445, 
450 
Hanch p. Ripley 691 

Hancock's Appeal 1222 

Hancox v. Donning 1734, 1756 

Handel v. Elliott 109, 1228, 1558 

Hanes o. Wadey 1558 

Hanger v. Fowler 229, 230 

Hanna o. Colo. Sav. Bank 1393, 1417 

v. DavU 1080 

v. Island Coal Co. 174,193, 
197, 201 0,203,206,207 

p. Phelps 6,419,422, 731, 

1019 

p. Wilson 1099 

Hannan o. Osborn 1155 

Hannon v. Gibson 1236, 1821, 1605 
Hansen v. Prince 544 

Hanson ». Cordano 1309 

v. Meyer 836, 838 

Hapgood v. Com well 791 

Happy o. Mosher 1756, 1809 

Haralson v. Bovle 620 

p. Langford 1102 a 

Harbach v. Kurth 1222 

Harbeck r. Southwell 123! 

Hardeman v. De Vaughn 461 

Hardin p. Boyd 1108, 112! 

v. Marble 1203, 1565 

Hards v. Conn. Mut. L. Ins. Co. 

1465 
Hare v. Stegall 614 

e. Van Duseo 1071, 1086 

Hartley p. Haynes 576 a 

Harker v. Conrad 1829, 1421 

Harkness v. Rusiell 820 

Harlan v. Rand 722, 1246, 1289, 1331, 
134! 



3igitiz eC by GOOgle 



TABLR OF OASES. 



Harlan p. Stnfflebeem 1190, 1*48, 

1699 

Harmsn's Appeal 1444 

Human p. Allen 1273, 1176 

v. Anderson 828, 921 

Harmon v. Ashmead 1190,1401, 

1488, 1565, 1588 

b. Jnge 620 

Hinnon v. San Francisco & S. R. 
B. Co. 1190, 1815, 1894, 141!, 

1418, 1569 
Hum* p. Solem 614 

Hnrnish p. Heir 1322, 1416 

Harper p. Keely 131S 

v. Wilkiogs 1069 

Harriet Olcott, The 1719 

Harriett Ann, The 1805 

Harrington e. Dollman 1200, 1408, 
1413 
p. HilleT 1898, 1559, 1569, 
1572, 1578 
Harris v. Boggs 864 

r. Clark 85 

v. Dammann 878, 674, 590, 
609 
v. Dennie 290, 451 

p. Flv 89,1163,1164 

0. Hanie 1071 

v. Hanks 1066, 1090 

t. Harlan 1079 

v. Hart 904, 921 

p. Jonea 543 

p. King 1 108 

p. Nicolopalo 800 

p. Pratt 861, 921, 922, 982, 

948, 961 
p. Schultz 1S41 

p. Watkins 1168 

p. Woodruff 644 

Harrisborg, The 1771 a 

Harrieoo p. Castner 1142 

p. Guill 612 

p. Horn 46G 

p. Jenkt 620 

p. Union Pacific Ry. Co. 85 
p. Women'i Homoeo- 
pathic Asao. 1384, 1444 
Harrison, flte. Iron Co. p. Coun- 
cil Bloffs Water Works Co. 1878, 
1580, 1576 
Hanhbarger p. Foreman 10S3 

Harioo t. Pike 487, 488, 490 

Hurt's Appeal 1665 

Bart v. Barney 8c Smith Manuf. 



Co. 



820 



'. Boston, Revere Beach ft 
Lynn R. H. Co. 1661 



Hart p. Carpenter 820 

p. Globe Iron Works 1272, 1384, 

1548 

p. Mullen 1191,1614 

p. Proceeds of The Oakland 1 786 

Hartley p. Hitchcock 810, 745, 972, 

1000 

Harttnan p. Keown 700 

Hartahorne p. Johnson 265 

p. Seeds 646,676 

Harvey, in re 161 

Harvey p. Kelly 1111 

p. Morris 1128 

Harrill v. Lowe 1109 

Hanrood p. La Grange 44 

Haaeldne 0. Ansherntan 626 

Haskell p. Rice 80S, 338, 841 

p. Scott 1080, 1093 

Haskins p. Warren 800, 809 

Haslett p. Gillespie 1222 

Harnett p. Curtis 1218 

p. Rust 1211, 1676,1613 

Hastings p. Belknap 6G9, 677 

p. Drew 84 

p. Woods 1876 

Hatton p. Caatner 1174 

Hatch p. rancher 1228 

Hatcher p. Briggs 1135 

p. Hatcher 1107, 1116 

Hathaway p. Dans 1272, 1278, 1274 

p. Fall River National 

Bank 251 

HattieLow, The 1706 

Hattie M. Bain, The 1709, 1713 

Haugh p. Blythe 1088 

Haugbery v. Thiberge 1204 

Hauptman p. Catlin 1218, 1260 

Hanse p. Judson 966 

Hauselt p. Harrison 



>. Vilm: 



48 



Havana, The 1706, 1729, 1791 

Havens p. West Side Electric 

Light Co. 1276 

Haverly p. Becker 82 

Havighorstp. Lindberg 1199, 1290, 

1507 

Hawea v. Chatllee 1076 

p. Mitchell 1748 

». Watson 828, 848 

Hawk p. Leverett 1078 

Hawk Eye Woollen Mills p. Conk- 

lin 789 

Hawkins p. Brown 1148 

e. Giles 543, 548 

p. Loyless 178,196,209,210 

v. Thanr.au 1118 

Haworth p. Wallace 1 274 

li 



3igitiz eC by GOOgk 



TABLE Or CASES. 



llaxtum Steam Heater Co. v. Gor- 
don 1470 
Hayden v. Login 1319 
v. McDennott 21 7 
v. Wolfing 1404, 1407 
Hayes v. Bald Eagle Val. R. Co. 1551 
a. Campbell 278, 305 
ti. Fessenden 1848, 1253, 1S59 
Heyford v. Cunningham 1723, 1729, 
1746 
Havneg v. McGeehee 610 
Hays v. Mercier 1897, 1631 
v. Houille 367, 878, 885, 887, 
921, 922, 966 
Hazard v. Rowland 1697 a 
v. Manning 731, 1027 
Hazard Powder Co. b. Loomis 1220, 
1495, 1436, 1480 
Hazelhurst v. Sea Isle City Hotel 

Co. 1458 

Haxelrigg v. Roarman 1088 

Hazeltine v. Moore 1071, 1086 

Hearne v. Railway Co. 1283 

Heart v. State Bank 375 

Heartt v. Chipman 191, 204, 209 

Heath ■>. Sollei 1262, 1264 

p. Tyler 1206,1448 

Heaton v. Horr 1334 

Hecht v. Spears 1092 

Heckmanue. Pinkney 1218, 1236, 

1287, 1299, 1599 
Hefflin v. Bell 820 

Hegler v. Eddy 820 

Heidegger r. Atlantic Milling Co. 

1384, 1464 
Heidelbach r. Jacobi 1460 

Heidritter v. Elizabeth Oil-Cloth 

Co. 1550 

Heier v. Meiach 1394 

Heim o. Voget 1679 

Heinekey v. Earle 867, 924 

Heinrich u. Carondelet Gymnastic 

Soc. " 1417 

Heins v. Peine 446 

Heist v. Baker 1110 

Heiater t>. Mount 158, 204 

Hektograph Co- v. Fourl 199 

Helen Brown, The 1 734, 1 748 

Heller v. Elliott 849 

Helm r. Chapman 1190, 1309c 

c.Meyer 437 

v. Swiggett 386 

Helser e. Pott 571, 672 

Heltxell v. Chicago & Alton R. R. 

Co. 1655 

v. Kansas City, St. Louis 
& Chicago R, R. Co. 1655 
lii 



Heman v. Britton 84, 85 

Hempstead Asso. o. Cochran 557, 638 

Henchett v. Kimpeou 626 

Hentbej v. Chicago 167, 193 

Henderson v. Burton 1063 

v. Connolly 1258, 1487, 

1592 

v. Stnrgis 1218, 1301, 

1488, 1440, 1559 

Hendrick v. Foote 1115, ilia 

Hendrkk Hudson, The 1677 

Henley t>. Wadtworth 1289, 1512 

Henry v. Bunker 1211 

v. Davis 623 

v. Hinds 1*87, 1304, 1432, 1689 

r. Mahone 1393 

v. Plitt 1350,1404 

v. Bice 1235 

r. Traynor 179,227 

v. Walsh 735 

Henry & C. Co. v. Evans 1 304, 1 304 a, 

1556 

Henry County v. Allen 49 

Henry Dennis, The 1697 

Henael v. Noble 731, 740 

Henaon v. Reed 109S 

v. WestcoU 1091 

1331 

1166 

Hepburn t>. Snyder 28, 1063, 1179 

Herbert t>. Herbert 1243, 1286, 1287 

it. Scofield 1063 

Hercules, The 1802 

Herman v. Perkins 783 

Hero t>. Hopkins 1429, 1439, 1470, 

1472, 1491 

Herr v. Johnson 540 

Herrick v. Carman 260 

Herrin v. Warren 1210, 1286, 1287, 

1302, 1654 

Herring t>. Hoppock 820 

Herron «. Gill 552, 077, 560, 614 

i'. Graham 1532 

Hersbey u. Shenk 135J 

Hershy v. Du Val 170, 229, 230 

Herrey v. Gay 1272 

v. lit. Midland By. Co. 86 

t>. R. I. Locomotive Works 

820 
Hervford v. Davis 820 

Heelop t>. Gatton 1164 

r. Metcalfe 122 a, 132 

Hess v. Poultney 1206 

Hester v. Allen 783 

Heston v. Martin 1406, 1410 

Hewes v. Dehon 1165 

H. E. Willard, The 1697 a, 1725 



3igitiz eC by GOOgk 



TABLE OF CASES. 



Reference to Sections. 



Hewinn v. Guthrie 822, 650, 1000, 
1011 
Hewitt p. Trait* 1111 

Hew lot v. Flint 
Heydon & Smith's Case 1036 

Heywood v. Waring 
Hezekiah Baldwin, The 1677 

Hibbert v. Cooke 1160 

Hihernia Ins. Co. r. St. Louis 3c 

N. O. Transp. Co. 85 

Hfckeyc. Collom 1328 

f. O'Brien 1614 

Hickman v. Thomas 503, 641 

Hkkox r. Fay 1024 

v. Greenwood 1199, 1247, 

124S, 1249, 1257, 1487 

Hicks f. Morris 1086, 1093, 1098 

v. Murray 1390 

Hieetern. Green 1063,1114 

Biggins v. Bretherton 369 

tr. Ferguson 1258 

v. Scott 231, 45! 

Highr.Batte 1100 

Highlander, The 1006, 1535, 1536, 

1704 

High* s. Fleming 781 

Hightower v. Rigsby 1092 

Hifderbrandt n. Savage 1614 

Hilger v. Edwards 743 a, 1026 

Hill r. Aldrich 1458 

v. Bishop 1S25 

d. Bourcier 993 

f. Bowers 1350 

r. Braden 1200, 1310, 1327 

f. Brinkley 155,167, 174 

f. Burgess 733 

b. Cole 1110 
f. Downs 1116 
f. George 636 
s. Gill 1235,1252, 1259 
f. The Golden Gate 1682, 1683, 

1691 
f. Grigtby 1107 

t>. La Cross* Si Milw. R R. 

Co. 1232, 1378, 1425, 1600, 

1618, 1622 

f. McLean 1080, 1087 

c. Mathewion 1286 
s.Newman 1356 
.. Pine River Bank 404 
u. Reeves 611 
tr. Ryan 1310 

__ v. Sloan 1534 

1434 



Hill's 



1164 



Hills v. Elliott 18>0 

v. Halliwell 1551 

v. Ohlig 1190, 1405 

ffillsbnrgo. Harrison 743 a, 753, 997, 

1025 

Hilton v. Merrill 1252, 1254 

t>. Sinsneimer 220 

v. Vanderbllt 478 

Himely r. Wyatt 562, 664 

Hlmee r. Langley 1071, 1088 

Hinchley v. Greany 1504 

Hinchman v. Graham 1329 

». Lybrand 1500, 1519, 

1520, 1524 

Hinckley v. Cracker Co. 1190, 12S3, 

1284 

Hinckley St Egery Iron Co. v. 

James 1228 

Hine, The, o. Trevor 1725, 1729, 

17430,1750 

Hinea o. Perkins 1107, 1116 

Kingston v. Wendt 287, 288 

Hinson t>. Gamble 229 

Hintoov. Goode 781 

Hippie v. Canal Boat Fashion 1760 

Hiram R. Dixon, The 1722 

Hirschorn v. Canney 820 

Hiscock o. Norton ■ 1061, 1071 

Hiscoz t>. Greenwood 733 

v. Harbeck 1728 

Hitchcock v. Hassett 542 

t>. Kiely 1260, 1268 

HUto. Pickett 1107, 1116 

Hoagland o. Lusk 1520, 1532 

v. Van Etten 1599 

Hoata ». Patterson 725 

HobbsD. Davis 551 

tr. Spencer 1202 

Hobby v. Day 1257 

Hobsont.. Edwards 1119 

v. Watson 155, 158, 193, 214 

Hockaday v. Lawtber 1099 

Hodgdon v. Waldron 275, 276, 743 a 

1029 

Hodges f. Holman 787 

t>. Kimball 465 

it. Planters' Bank 376, 404 

i>. Roberts 1116 

Hodgson v. Loy 801, 861, 881 

Hodo ti. Benecke 515 

Hodson b. Warner 820 

Hoey if. Hews 620 

Hofer's Appeal 1435 

HofE's Appeal 1465 

Hoffman v. Baxtbelmess 495 

v. Brungs 463 

d. Lanrans 1272 

liii 



3igitiz eC by GOOgk 



TABLE OP CASKS. 



■efarenoe to flection*. 



Hoffinan o. McFadden 1260, 1S61, 

1362, 1268, 1364, 1260 

v. Miller . 25? 

p. Walton 109, 1390, 1408, 

1414 

Hofgeaang v. Meyer 1318,1286,1387 

Hogan p. Black 160 

v. Cashing 730 

Hoeae t>. Sheriff 786 a, 997 

Holbroak v. Ives 1516 

p. Vote 931, 932, 946, 947, 

908, 960 

v. Wight 418, 461, 460 

Holden v. Cox 676 a, 081, 616 

r. Winslow 1437 

Holdennan v. Menier 788, 733, 740 

Holderneaa v. Collinson 365, 967, 979 

v. Shackelt 1000 

Holl v. Griffin 828 

Holladay p. Barlholomae 070 

Holland v. Jones 1078 

p. McCarty 1211, 1972, 1421, 

1423 

v. Wilton 1190 

Holler p. Apa 1604 a, 1616 

Hollingsworth v. Dow 26, 733 

v. Hill 62S 

p. Napier 908 

Hollis c. Claridge 115, ISO, 148 

tt. Hollis 1088 

Hollister p. Mott 1012, 1013 

Holly v. Huggeford 807, 429, 982, 

983, 986, 989 

Holmiin 17. Pattersou 1076, 1108 

Holmes v. Bailey 460 

p. Balcom 482 

v. Bank 460 

v. Hall 044 

p. Railway Co. 1806 a 

tt. Richet 1327, 1090 

Holroyd p. Bream 215 

p. Gwynne 820 

Hoist v. Pownal 875, 936, 980, 931, 

936 

Holt v. Bank of August* 64, 76 

p. Quimby 221 

Hokhour v. Meer 1S0S 

Homana v. Coombe 1407 

Hommel u. Lewis 1384, 1330, 1333 

Homoeopathic Anso. p. Harrison 1444 

Honore p. Bakewell 1074, 109! 

Hood p. Hanning 655 

Hooker o. MoGlone 1347,1309,1368, 

1067 

Hooper v. Brundage 166, 330, 381 

tf. Evlea 1183 

v. Flood 1190, 1401, 1073 

Ht 



Hooper v. Strahan 1076.1O8S 

v. Welch 110, 191, 199, 194, 

309, 312, 217 

Hoopea p. Worrall 676 

Hoopi p. Crowley 633 

Hoover v. Epler 648, 689, 998, 995 

p. Tibbits 931, 991, 935, 944 



Hope, The 


1698, 1787 


Hope Mining Co., in re 


109, 1356, 

1658 

1419, 1083 


Hopkins v. Forrester 


t>. Gilman 


1161 


p. Simpson 
HopkinsoD v. Forater 


608 


67 


Hopper p. Childa 


1282 




639 


Horn t>. Baker 


820 


Hornbrooks p. Lucaa 


580, 086 


Horn castle e. Farran 


323 


Horning v. Wiederapalen 1164 


Horton v. Carlisle 


1820, 1326 


t7. Champlin 


107, 168, 214 


p. Horner 


109* 


Hoakins v. Carter 


1201 


v. Knight 
p. Paul 


573 


569, 664, 637 


v. Rowe 


1068 


p. Wall 


1069, 1110 


Hostlor, Case of 


6 


Howling v. Croniw 


1421, 1643 


Hough o. Edwards 


118, 157 


Houghton p. Bauer 


616 


v. Blake 1800, 1337, 132 


v. Matthews 


448, 449, 466 


Honlditeh i>. Deiangee 


850 


Houston p. Dickson 


1064, 1102 


p. McCluney 


1150, 1166 


u. Stanton 


1076 


Hovey v. East Providence 1375 


p. Elliott 


29, 90, 95, 96 


p. Rubber Tip Pencil Co. 217 


v. Smith 


600 


How p. Kirchner 


S26 


Howard, The 1691, 1780, 1731 


Howard p. Doolittle 


1276 


_ p. Macon dray 


327 


v. Osceola 


116, 304, 208 


v. Biker 


187 


p. Robinson 


1460 


p. Shepherd 
p. Tucker 


951 


326 


p. Veazie 1248, 1309, 1460 




77 


Howe p. Kindred 


1620, 1643 


p. Patterson 


1548 


p. Stewart 


868 


Howe Machine Go. p. Miner 94 



z „b, Google 





TABLE 0? CASES. 






RafttMM to Section*. 




Howe Machine Co. p. Sloan 564 


Hunt p. HcClanahan 


190, 230, 985 


Howell v. Alport 


934 


p. MeMahon 


1144 


v. Harding 


he 


v. Marsh 1074, 1086, 1090 


p. Hathaway 


1264 


p. N. Y. k Erie B. R. Co. 302 


Howes r. Ball 


74! 


p. Ward 


986 


p. Newcomb 


691, 89 la 


p. Waterman 


1087, 1088 


v. Wire- Works 


1384, 1329, 


p. Wing 


776, 786 




1513 a 


Hunter v. Beale 


939 


Howett o. Selby 
Howitt v. Merrill 


1199 


p. Blanchard 


1235, 1827 


2S5 


p. Lanning 


1222 


Howland v. Forlaw 


6S1 


p. Truckee Lodge 1214, 1285, 


0. Lounds 


490 


1298, 1304, 1304 a. 


Hoyt, n re 1282 


1470, 1491 




1556 


Hoyt p. Hoy t 


11GS 


p. Walker 


1518 a 




1297, 1699 


p. Whitfield 


659, 680, 614, 


p. Spragoe 


794 




1046 


p. Story 4£ 
Hubbard p. Bellow 


, 60, 62, 60 


Huntington p. Barton 


1564 


80 


Huntley e. Holt 


1262, 1263 




1412, 1446 


Hard v. Hartford & N. 


T. Steam- 


p. Clark 


1062, 1101 


boat Co. 


289 




1200, 1574 


o. Hixon 


1882 




626 


Hnribert v. Brigham 


115, 137,146 


v. Roach 


1719 


p. New Dim Basket 


Hobbell p. Schreyer 
Hubbersty p. Manchester 


1400, 1614 


Works 


1401, 1589 


Shef- 


Hurley p. Hollyday 


1074, 1116 


field & Lincolnshire By. 


Co. 897 


p. Lilly 


120T 


Hnckins p. Gushing 


997 


Hm-lock p. Smith 


1098 


Hndler v. Golden 


108 


Huron, The 1*87, 1734, 1748 


Hudmon v. Trammel] 


1689 


Harry p. Mangles 


832 


Hudson v. Granger 

p. Vaughan 


483, 472 


Horsey v. Hassam 


1210, 1614 


603 


Harsh p. By en 
Buret i>. Bell 


613 


Hofi p. Clark 


1382 


60S 


p. Earl 


1000 


p. Marshall 


1093 


p. Jolly 


1268 


p. Sheets 


175, 217 


Hnirmsn p. Csnble 


1116, 1124 


Hue p. Washburn 1232, 1560, 1588, 


Hug p. Hintrager 1290 
Hughes o. An sly n 


1427, 146S 




1600, 1618 


1262 


Huuejr p. Fields 


170S 




'745 


v. Manufacturers' & Me- 




115 


chanics' Bank 375, 414 


p. Patera 


1262, 1263 


v. Peebles 


603 


*.S4bre 


600 


p. Thornton 


820 


t>. T orgerson 


1367, 1673, 


Hasted e. Ingraham 


77, 95,819 




1586, 1600 


p. Mathes 1251, 1254, 1260, 


p. Whitaler 


637 




126S 


Hulett p. Whipple 

Hull of a Now Brig, The 


1081 


Hatchings p. Nnnes 


875, 876 


1748 


p. Western ft Atlantic 


Hnll of a New Ship, The 


1798 


R. R. 


£69 


Hnliman p. Whitman 


1467 


Hutchins p. Olcutt 


1010 


Home v. Dixon 


1078 


Hutchinson p. Howard 


115, 191, 198, 


Hammer P. Scbott 


1086 




202, 227 


Humphrey v. Browning 


167, 229 


p. Patrick 


1114 


p. Thorn 


1090 


v. Pettei 


191, 196, 208 


Homphreya p. Seed 
Hunder v. Le Conte 


831 


Hutton p. Bragg 


871, 272, 461 


689 




1092, 1107 


Hnan p. Bowne 


846 


Huiford p. Bogardus 


1614 


Hunt p. Harbor 


109! 


Hyde p. Cnlver 


1745 


9. Haakell 2S2, 270, 335 


It 


1174 



jipismb, Google 



TABLE OF OASES. 



Reference to Sections. 



Hydraulic Brick Co. v. Bormans 

1471, 14 
Hyl ton v. Brown 11 

Eynson v. Cordnkes 6 

Hyperion's Cargo, The 17 



laege v. Boesieux 

Ida Meyer, The 

Mas, The 

Iglehart v. Anniger 

Ilett v. Collins 

Hex, The 

Illinois, The 

Illinois Cent. R. R. Co. t 



Alex. 



264 

Holey ». Stubbs 903,912 

Imogene M. Terry, The 1706 

Imperial Bank v. London & St. 

Katharine Books Co. 874 

Imperial Bank v. London Docks 

Co. 883, 994 

India, The 1690 

Indiana, The 1683 

Ingalla v. Green 691 

». Vance 641, 689, 691, 691 a, 
692 a 
Ingallsbee v. Wood 503 

Ingersoll v. Van Bokkelin 1036 

Inglis p. Uaherwood """* r "" "" 



Inalee v. Lone 



915 



861, 884, 887, 921, 
937, 965 

Instalment Building Co. v. Wont- 
worth 1401, 1559 
Insurance Co. v. Baring 1679, 1693 
e. Dunham 1698, 1722, 
1729 
ii. Proceeds 1698 
v. Stinson 1541 
International, The 1704 
Inverarity ti. Stowell 1275, 1384, 
1457 
Iowa Mortgage Co. n. Shanquest 

1443, 1483 
Ira B. Ellems, The 1720 

Ireland v. Atchison, Topeka & 

Santa FSR.R. Co. 1619 



v. Livingston 


869 


Irish t>. Lundin 


1249 


Iron Co. v. Murray 


1500, 1501 


Irvin v. Palmer 


74 a 


Irvine v. Muse 


1086, 1108 


Irwin p. Crawford sville 


1200, 14 S3 


v. Garner 


1080 


hi 





Irwin v. Workman 
Isaac May, The 
Isaack v. Clark 
Isbell p. Dunlap 
Island City, The 
Ives c. Potak 
Ivey v. White 



Jackman v. HsJlock 1092 

Jacks t>. Smith 571 

Jackson's Appeal 632 

Jackson u. Bain 60S 

v. Clopton 144, 169, 203 

v. Cummins 641, 742 

v. Hill 1098, 1101 

v. Holland 641 

v. Kasseall 641,673,690,691 

v. Loomis 1133 

v. Ludeling 1146 

p. Kichol 267, 885, 901, 919, 

920, 921, 922, 989, 940, 965 

v. Hutledge 1069, lllfi 

Jacobs u. Knapp 10, 26, 715, 721, 

722, 728, 982 

ti. Latonr 16, 330, 644, 1014 

Jacobus v. Mnt. Benefit L. Ins. 

Co. 1216, 1469, 1472 

Jacubeck p. Hewitt 728 

Jaffrey ti. Allan 859 

Jalie r. Cardinal 511 

James o. Bird 40, 811 

v. Griffin 884, 902, 904, 908, 

919, 921, 924, 940 

p. Hambleton 1312, 1313 

v. Von Horn 1216,1312,1455, 

1456, 147S 

James Fan-ell, The 1687 

James Guy, The 1681, 1688 

James H. Prentice, The 1738 

James T. Easton, The 1793a, 1808 

Jamison v. Barelli 1204 

Jaquith v. American Express Co. 

519, 1043 
Jarboe v. Tempter 1613 

Jarchow v. Pickens 557 

Jarechi e. Philharmonic Soc. 1341 

Jormon p. Farley 1083, 1090 

Jarvis v. Rogers 15, 23, 251 

Jarvis-ConkliD Mortgage Trust 

Co. v. Sutton 1257, 1689 

J. C. Rich, The 1722, 1725 

J. C. Williams, The 1707, 1708 

Jean v. Spurier 628 

tr. Wilson 1473 



3igitiz eC by GOOgk 



TABLE OF CASES. 



Befcrenoe to Section*. 



Jcanie Landlee, The 1688 
Jefferson, The 1725 
Jefferson v. Church of St- Mat- 
thew 1S07, 1410 
Jeffrey v. Moran 1675 
Jeffiyes p. Agra & Masterman's 

Bank 847 

Jenks v. Osceola Tp. Ib-i a 

Jenkins s. Adami 189, 210 

p.Freyer 1178 

d. Mean* 1141 

p. Stephens 281 

Jeniyns d. Brown 916 

v. Usborne 879, 958 

Jennie B. Gilkey, The 1681, 1698 

Jennings v. Bank of California S76, 

Jenny Lind, The 1766 

Jensen v. Brown 1287 

Jersey v. Briton Ferry Floating 

Dock Co. 1074 

J. E. Rumbell, The 1676 

Jerusalem, The 1777, 1780 

Jenmra p. Kent 764 

Jeasup v. Atlantic & Gulf R. R. 

Co. 1642 

o. Stone 1282, 1469, 1470, 

1487, 1692 

Jewell t>. McKay 1616 

v. Feron 1616 

Jewett v. Keenholt* 1174 

Jewitt, in re 136 

J. F. Spencer, The 1679 

J. F. Warner, The 1806 a 

Jimison v. Reifsneider 662 

Jobe v. Chedister 1088 

Jobeen v. Boden 1222 

Jodd v. Duncan 1260, 1928 

John v. Elevator Co. 1 729 

John A. Morgan, The 1706 

John Cuttreli, The 1717, 1774, 1811 

John C. Fisher, The 1808 

John Dillon, The 1800 

John Farron, The 1728, 1729, 1794 

John G. Stevens, The 1781a 

John & Mary, The 1810 

John M. Welch, The 1719 

John T. Moore, The 1698, 1716, 

1746, 1794 

Johns p. Bolton 1532 

v. Sewell 1069 

Johnson p. Ballard 220 

v. Barnes, (a:. Building 

Co. 1211, 1408 

v. Bondry 1609 

v. Building Co. 1412 

v. Campbell 436 



Johnson v. Cantrell 1069 

v. Cawthom 1081 

p. Chicago St P. K Co. 

1742, 1770 

De Peyster 1599 

Dewey 1276, 1278 

Douglass 666, 670 

802, 1108a 

661 



i. Burner 



v. Farnum 


811 




1224 


v. Godden 


1086 


v. Gold 


1407 


p. Hill 


4S9, 501 




1119 




1684 


v. Lcnim 


1177 


v. McGrew 


1063, 1083 


p. McMillan 


171 


i>. Nunnerly 


1095 


v. Parker 1289,1262, 1268, 




1270 


v. Perry 


649 


p. Pike 


1209, 1248 


o. Prussing 


971, 618, 614 


v. Story 


166 


p. Sugg 


1086 


p. Tacnean 


620 


v. Town send 


1098 


d. Tutewiler 


1262 


v. Upbam 
o. Ward 


6S2 


1758 


d. Weinstock 


1146, 1204 


Johnston v. Cochrane 


1119, 1126 


v. Da»i* 


332 a 


p. Gwathmej 


1092 


p. Harrington 


1392, 1449, 




1452 


i). Smith 


1103, 1129 


Joiner v. Perkins 1064, 1074, 1094, 




1098, 1102 


Jolly v. Stalling* 


1070 


Jones v. Bank 


84 


v. Bonner 


203, 234 


v. Church of Holy Trinity 


t>. Doss 


991,1092 


v. Earl 


888, 891 


f. Eubank s 


611,612 


p. Findley 


576 


v. Fletcher 


791 


p. Fox 


610 


p. Frost 


228 


p. Gallagher 


421 


o. Goldbeck 


564 


p. Gundrim 


372, 998, 632 


p. Hartaock 


1570, 1971 


lvii 





, Google 



TABLE OF OASIS. 



Joou w. Hunt 1494, 1498, 1532, 1568 
p. Jauos 1068 

v. Jeffresa 1203 

p. Johnaon 1S85 

c. Jonea 837, 962 

*. Keen 1737, 1748, 1795 

p. Lusk 789, 798 

v. Manning 1278 

t>. Marks 470 

p. Morgan 115, 208 

p. Morrill SOI 

p. Monnt Zion 1204 

v. Parker 1069, 1093 

v. Parsons 793 

o. Pearl 88S, 019, 328, 986, 

1033, 1038 
832 



p. Peppercorns 



639 
i. Pothast 1262, 1270 

p. Ragland 1063, 1082, 1099 
p. Shawhan 723, 1111, 1865, 

1382 
v. Sinclair 307, 967, 1035 

«. Swan 1235, 1286, 1325, 1830, 
1487, 1443 
p. Tarleton 334, 1019, 102S 

p. Thurloe 519, 623, 850 

p. Vantreta 1089 

v. Walker 688, 1251, 1262, 1263 
p. White 1532 

p. Wylie 612 

Jones & M. Lumber Co. p. Mur- 
phy 1289, 1290, 1396, 1441 
Jones & Magee Lumber Co. p. 

Bogg* 1562, 1564 

Jordan p. Board of Education 1375 
o. Bryan 6S1 

p. Hunt 203 

P. James 418, 465, 861, 946 
p. Nat. Shoe & Leather 

Bank 245, 246 

p. Wimer 1068, 1071, 1083 

Jorden p. Pumphrey 1262 

Joseph Cunard, The 1713 

Joseph p. Seward 1102 a 

Josephine, The, in re 1729 

Josephine Spangler, The 1690, 1794 

Joule v. Jackson 063 

Jonrdaine p. Lefevre 241 

Joyce o. Swann 916 

p. Wilkenning 079, 609 

Judah v.Kemp 1019 

Jndson p. Etheridge 641 

v. Stephens 1245, 1257, 1272, 

1276 

Judy v. Farmers' & Traders' 

Bank 252 

lviil 



Julia Ann, The 1811 

Julia L. Sherwood, The 1756 

J. W. Tucker, The 1676,1773,1776, 
1777, 1778, 1779, 1780, 1788, 
1800, 1801, 1802 
Jostice t>. Justice 201 a, til 

K. 

Kahn p. Bank of St Joseph 396 

Kslorama, The 1681, 1688 

Kane p. O'Connors 11 78 

Kankakee Coal Co. p. Crane 

Manuf. Co. 1019, INI 

Kansas City Hotel Co. p. Saner 

1374 
Kansas City Planing HOI Co. v. 

Brundage 1264 

Kansas Lumber Co. p. Jones 1383 

Kansas Mortg. Co. p. Weyerhaeu- 
ser 1470, 1472, 1478 
Kansas Pacific Railway Co. v. 

Thacher' 176,211 

Karns p. McKlnney 062 

Karo, The 273 

Kassing p. Keohano 567 

Kate Hlnchman, The 1776, 1779, 

Kate Tremaine, The 1713 

Katzenbach p. Holt 1503 

Kauffelt p. Bower 1061, 1063, 1090 
Kaufman p. Keenan 189 

Kay p. Smith 1004, 1556 

Kealey p. Murray 1854, 1397, 1404 
Keane p. Athenry, Are. By. Co. 1674 
Kearney p. Wurdeman 1412, 1432, 
1067 
Kearsarge, The 1696, 1746, 1809 

Keas p. Burns 1142 

Keating Implement Co. p. Mar- 
shall Electric L.&F. Co. 1226, 1341, 
1443, 1470, 1480 
Keelerp. Goodwin 810, 323, 824, 833 
Keenan v. Dorflinger 193, 208 

Keep Manufacturing Co. p. Moore 

277 
Keboe v. Miller 180, 189, 210 

Keim'l Appeal 864 

Keith p. Fink 799 

p. Horner 1068, 109! 

p. Wolf 1074 

Kellebrew p. Hinea 1069 

Kelleoberger p. Boyer 1202, 1488, 

1078 

Keller p. Denmead 1207 

p. Houlihan 1390, 1892, 1402 



: ec b y Google 



TABLE OF OASES. 



Reference to Sentient. 



Keller t>. Lewis 1126 

v. Struck 1382 

p. Tracy 1STS 

v. Weber 996, 597, 600, 822 
Kelley v. Border City Mill* 1339, 

1369 
v. Kelley 710, 724, 728, 102S 
Kellogg v. Howes 1190, 1267 

p. Little, &c. Mannf. Co. mi 
Kellum *. Emerson 1697 a 

Kelly, in ra 968 

Kelly d. Chapman 1571 

c. Davenport 690 

t. Kanur 1079, 1102 

t>. Kelly 88, 77, 83 

». Laws 1397, 1401 

v. McGehee 1260, 1578 

t>. Mill* 1094 

P.Payne 1090, 1119 

v. Pbclan 244 

p. Bosenstock 1473, 1474 

e. Bowane 1S12, 1513 a 

•.Ruble 1068,1094 

Kelseyp. Beers 1811 

v. Layne 641, 648, 687 

Kemp v. Falk 861, 893, 998, 994, 

960, 962 
Kempe p. Kempe 1 1 64 

Kendal, ex parte 1046 

Kendall p. Marshall 919, 921 

Kendall Manuf. Co. p. Rnndla 1819 
Kendrick v. Eggleston 1088, 1090 

Kealy v. Sisters of Charity 1206, 

1286 
Kennard p. Harrey 976 a, 580, 619 
Kennebec Framing Co. o. Picker- 
ing 1442 
Kennedy v. Gaga 1228 
v. House 1421 
v. Langs 962 
p. Reames 488, 543, 635 
Keaney r. Apgar 1118, 1849, 1879, 
1984 
Kennon p. Wright 603 
Kenny p. Gage 1461 
Kensington, ex parte 446 
Kent *. Brown 1841,1848,1844 
«. Gerhard 1063, 1069 
p. New York Cent. R. B. 
Co. 1669, 1670 
Kenton In*. Co. v. Bowman 376, 
405, 408 
KenyoD p. Covert 1756 
p. Peckham 1223 
Keogh b. Main 1484 
Keppef p. Jackaon 1372 
Kerby v. Daly 1240, 1862 



Kerchoff - Cnaner Co. *. Cou- 
ntings 1180 
Kerchoff-Cuxner Co. v. Olmstead 

1438 

Kerford v. Hondel 1026 

Kern v. Haalerigg 1092 

Kerns p. Flynn 1574 

Kerr v. Moore 990, 1494, 1499 

Kerrick v. Buggies 1247 

Kershaw a. Fitipatrick 1848, 1419 

Keesler v. M'Conachy 562 

Ketchum v. Watson 820 

KeUlewell p. Watson 1061 

Key City, The 1800 

Keystone M. Co. v. Gallagher 1191, 

1398 a 

Kezartee p. Marks 1221, 1810, 1397, 

1402, 1408, 1421, 1459 

Kidd v. Wilson 1201, 1249, 1260, 

1262, 1264 

Kidder v. Page 104S 

Kiel v. Caril 1408, 1418, 1S98 

Kleldsen p. Wilson 704, 728 

Kiersage, The 1797, 1794 

Klessig p. Allspangh 1190 

Kiewit b. Carter 1811 

Kilbourne v. Jennings 1289 

Kimball, The 824, 827, 1808 

Kimball v. Ship Anna Kimball 1009, 

1010 

p. Thompson 791 

Kimble p. Esworthy 1086, 1099 

Kimbroagh v. Curtis lilt 

King, ex parte 788 

King p. Bate* 820 

v. Blackmora 888 

v. Blount 606 

v. Denison 1164 

p. Greenway 1726, 1783, 1766, 

1810 

v. Indian Orchard Co. 26, 731, 

746, 997 

o. Kelly 713 

v. May 118 

p. Richard* 303, 304 

c. Sankey 119 

f. Smith 124S, 1251, 1642 

v. Thompson 1138 

p. Young Men'* Association 

1111, 1126 
Kingsbury p. Millner 1102 

Kingsland v. Chetwood 1199 

Kingston, The 1688, 1691, 1730, 

1756, 1794 
Kinlooh o. Craig 464, 871 

Kinney v. Blackmer 1192. 1286 

p. Bobison 178,220 

lix 



TABLE OF OASES. 



Reference to Section*. 



Kinney v. Sherman 151! 

Kinsey v. Stewart 137 

Kinsley v. Buchanan 1532 

Kinzey v. Thomas 1519 

Eipp v. Rapp 2U, 283 

Kirby v. Kirby 198 

v. McGarry 1232, 1554 

v. Schoo n maker 787 

v. Tead 1359, 1271 

Klrcbner v. Venus 370, 336 

Kirk n. Sheets 1101 

v. WillUmi 1112, 1113 

Kirkham v. Boston 1063, 1073, 1066 

Kirkman v. Shawcroat 18, 265, 132 

Kirkpatrkk v. Bank of Augusta 1741 

p. Cason 623 

v. Chesnut 1163 

Kirksey v. Means 42, 60, 66 

Kirn v. Champion Iron Fence Co. 

1239 

Kirtland v. Moore 1316 

Kitchen v. Spear 921 

Kitson v. Cramp 1342 

Kitteridge d. Freeman 745, 997 

Kittredge v. Bellowa 18 

i). Neumann 1362, 1458 

v. Sumner 989 

Kittridge v. Ribas 620 

Kixer Lumber Co. n. Mosely 1434, 

1436, 1559 

Kleber u. Ward 5G2, 632 

Kline's Appeal 1318 

Kline v. Comstock 727, 728 

t>. Cutter 1216 

Kling v. Railway Construction Co. 

1306, 1408 

Klopp e. Lebanon Bank 401 

Knabb's Appeal 1421 

Knapp, in re 115, 137, 139, 146, 155, 

188, 220 

Knapp v. Brown 1235, 1236, 1271, 

1281 

v. St. Louis, Kansas City 

& Northern Ry. Co. 1619, 

1620 

v. Swaney 1315 

Knaube v. Kerchner 1348, 13-10 

Knauft p. Miller 1314 

Knight, in re 150 

Knight t>. Begole 1199 

e. Blantou 1101 

v. Norris 1367, 1406, 1410, 

1440 

t>. Old Nat. Bank 384 

v. Providence & Worces- 
ter R. R. Co. 289 
Knights v. Wiffen 843, 845 



1116 



Kniaelr v. Williams 
Knobeloch v. Smith 
Knott v. Carpenter 1262, 1264 

v. Shepherds town Manuf , 

Co. 29, 31 

Knowlea v. Jooet 1387 

D.Pierce 



i. Sell 



617 



Knox v. Hilty 1585 

v. Hunt 581, 626 

*. Starks 1469 

Knutien v. Hanson 1213 

Koenig v. Boehme 1211 

o. Mueller 1341 

Kobler v. Hayes 820 

Kollock v. Parcher 719, 736 

Kornegay 0. Stvron 1810 

Kremer v. Southern Express Com- 

Kretxmer t>. The William A. Lev- 
ering 1 755 
Krey v. Hnssman 1311 
Kroger tr. Wilcox 418,466 
Knhns v. Tumey 1360 
v. Westmoreland Bank 401 
Kulp v. Chamberlin 1200 
Kurtz v. Dunn 606 
Kusterer v. City of Beaver Dam 

197, 206, 307, 208 
Kyle, ex parte 160, 165 

Kyle e. Bellenger 1086, 1111 

Kymer tr. Suwercropp 862, 863 



Lablacbe v. Kirkpatrick 210 

Labouisse v. Orleans Cotton Rope 

StManuf. Co. 1063,1092 

Lachenmeyer p. Lacheumeyer 309 

Lackington t>. Atherton 831,905,926 
Lackner v. Turnbnll 1605 

La Crosse & Milwaukee R. R. Co. 

v. Vanderpool 1633 

Lady of the Lake, The 1697 a 

La Framboise p. Grow 161 

La Grille i>. Mallard 1283, 1345 

Lagow t>. Bsdollet 1032 

L'Hommedieu b. Dayton 1026 

Laird v. Moonan 1235, 1304, 1305, 

1306 

Lake i>. Craddock 1147 

v. Gaines 60S 

v. Gibson 1147 

v. Ingham 213 

Lalaurie v. Woods 620 

Lamb v. Cannon 1458 



3igitiz eC by GOOgk 



TABLE OF CASES. 



Reference to Sections. 



Limb r. Hanneman 1201,1235,1406, 

1437, 145S 

Lambard v. Pike 1205, 13-13 

Lsmberson, in re 139 

Lambert v. Robinson 981 

v. Williams 1310 

Lambeth v. Fonder 556 

Lwnont t>. Railroad Co. 198, 196 

Lamotte p. Wisner 077, 580 

Lamport b. Beeman 1104 

Lamp son o. Bo wen 1571 

Lancaster Co. Bank's App. 1164, 

1171 

Land Co. p. Peck 1088 

Landers e. Dexter 1310, 1313, 1314 

Landis o. Gooch 476 

Landry v. Blanchard 732, 760 

Landrsltowski v. Martyn 1513 a 

Lane v. Bailey 231 

r. Bartlett 909 

c. Cotton 731 

v. nullum 170 

v. Jackson 864 

v. Jones 1187, 1374, 1410, 

1414, 1423, 1431, 

1532 

v. Ludlow 1105 

v. Old Colony & Fall River 

R. R. Co. 312,320,321 

o. Penniman 270 

tr. Robinson 902, 921 

v. Snow 1250 

v. Steinmetx 562, 064 

Lang t. Buffalo Seamen's Union 233 

v. Wilkinson 1092 

Lsngan v. Snnkey 1494 

Langford t>. Mackay 1199, 1463 

Langtdorf v. Le Gardenr 620 

LangitaS o. Stix 940 

Langtton e. Anderson 781 

Langwortby v. K. T. & Harlem 

E. R Co. 262 

Lanier n. Bell 1219,1325 

Lanigin v. Bradley & Currier Co. 

1498 
Lann e. Church 149, 166, 228 

Lannbg p. Tompkins 
Lansing p. Ensign 

v. Rattoone 076 

Lany on v. Blanchard 
Lapene x. Meegel 
Larch, The 1697, 1697 a, 1707 

Larkin c. McMuUin 1286, 1287, 1294, 
1299, 1012, 1013 
Larkint d. Blakeman 1314 

Laruunie e. Carley 4 

Lamer, in re 



Laswell v. Presbyterian Church 1406, 

1410, 1402 

Latham v. Staples 1094 

Lalhrop c. Clewis 611 

Latson p. Nelson 1287, 1289 

Lauer v. Bandow 1248, 1262, 1263 

v. Donn 1218, 1301, 1511 

Lauman's Appeal 1318, 1392, 1404 

Lauretta, The 1799, 1800 

Lavender v. Abbott 1063,1090,1101 

v. Atkins 206 

v. Hall 608 

Lavigne v. Naramore 1110 

Laviolette v. Bedding 1273, 1532 

Law v. Butler 1092 

Lawrence v. Meyer 1090 

v. Stonington Bank 260 

v. Taylor 1409 

v. Weeks 467 

Lawson e. Dickinson 126 

v. Hogan 1598 

Lawton p. Case 1200, 1590 

Lax e. Peterson 1313, 1317 

Leak v. Cooke 783 

Leash p. Scott 949 

Leavenson c. Lafontane 176, 217 

Leavy v. Kinsella 849, 972 

Le Blanc, in re 88 

Ledbetter «. Quick . 094, 631 

Ledford tr. Smith 1063, 1074 

Ledos ii. Kupfrlan 1080, 1083 

Ledonx v. Jones 620 

Lee v. Burke 1222, 1306, 1416 

v. Citizens' Nat. Bank of 

Piqua 378, 384 

v. Creditors 111 

v. Flemingsburg 490 

r. Gould 747, 1002 

v. Kimball 946, 949 

t>. O'Brien 1506 

e. Phelps 1556 

v. Winston 229 

Leeds t>. Wright 917, 921, 944 

Ijeese v. Martin 254 

Legg v. Evans 986 

cMathieson 1670 

v. Willard 1014 

Leggett v. Bank of Sing Sing 376 

377, 393, 398 

Leonard v. Armstrong 1199 

Lehigh Coal & Navigation Co. tr. 

Central R. R. Co. 1630 

Lehman, ex parte 169, 203, 217, 218 

Lehman v. Howie 608 

v. Stone 576 a, 638 

v. Tallasee Manut Co. 244 

Lehmann v. Schmidt 101g 

hi 



jipismb, Google 



TABLE OF CASES. 
Reference t* Sections. 



Lehndorf v. Cope 1092 

Leiby v. Wilson 1282 

Leigno v. Schwaraler 1218, 1400, 

1594 

Leird p. Aberaathy 1102 

Leismano v. Lovely 1236 

Leisse v. Schwartz 1263, 1404 



Leitch v. Owing! 


sas 


Leith's Estate, in re 


4,6 


Lelund v. The Medora 


1709,1800, 




1801, 1805 


Lemay v. Johnson 


606 


Lemly r. La Grange Iron & Steel 


Co. 


1422 


Lempriere t. Pasley 


4S1 


Lenel's Succession 


1204 


Lenox o. Yorkville Co. 


1608 


Leonard v. Brooklyn 


IS75 


v. Cook 


1487 


r. Davis 


800, 850 


v. Decker 


1770 


*. Reynolds 


1375 


v. Sheard 


838 


v. Window 


265 


Leonard Richards, The 


1781a 


Leopold o. Furber 


1128 


v. Godfrey 
Le Roy e. Globe Ins. Cc 
Lesaseier v. The Southw 


552, 613 


» 88 


estern 949 


Lesher v. Roessner 


209, 214 


Leslie v. Hinson 


990 


Lessells t>. Farns worth 


679, 690, 694, 




1009 


Leaaeps v. Rilcher 


620 


Lester v. Houston 


1219, 1235 


v. Pedigo 
Leszynsky v. Merritt 
Lett v. Morris 


1229 


115, 122, 135 
43, 45, 47, 63 


Leuckhart t>. Cooper 


266, 901 


Lev en v. Smith 


815 


Levering v. Bank 


1700 


Levingstoa v. Parish 


631 


Levy t>. Barnard 


423, 447, 469 


o. Steinbach 


217 


v. Twiname 


652 


Lewin v. Whittenton Mills 1411 


Lewis's Appeal 


698, 682. 633 


Lewis, exports 
Lewis v. Boskins 


1719 


1108 


e. CapertOD 


1081 


v. Chapman 


1110 


v. Chickasaw Co. 


1375 


v. Covillaud 


1086, 1092 




1102 


t>.Day 


185, 198 


v. Galena & C. 


U. R. R. 



Lewis *. Hancock 270 

v. Harris 1178 

[•.Hawkins 1108,1123 

v. Henderson 1076 

v. Kioealy 137, 159 

t>. Lotee 585 

p. Lyman 660 

v. McDowell 1123 

u. Mahon 636 

v. Mason 885, 87B, 931 

v. Price 1143 

e. Pnsey 1116 

v. Seylors 1311 

r. Tyler Ml 

Lex *. Holmes 1262 

Liberty No. 4, The 1781, 1798 

Lickbarrow u. Mason 10, 20, 336, 

418, 466, 807, 858, 862, 909, 946, 

951, 986, 1038 

Liebstein v. Mayor, &c. 1487 

Lienard t>. Dresslar 478 

Liesmann d. Lovely 1248 

Liggett Spring and Axle Co.'s 

Appeal 241 

Lillie, The 1800, 1810, 1811 

Lillie v. Case 1108 

Lillie Laurie, The 1787, 1793a 

Lillie Mills, The 1799, 1800 a 

Lime Rock, The 1890, 1699, 1799 a, 



Linden Steel Co. v. Imperial Re- 
fining Co. 1384, 1421 
Lindley v. Cross 1200, 1260, 1155 

v. Miller 613 

Lindner v. Hine 1 76 

Lindsay v. Gunning 1368 

v. Hmh 1461 

v. Lowe 1063 

Lindsey v. Bates 1092, 1096 

u. Lindsey 1168 

Lingan v. Henderson 1099, 1108 

Linn v. Bass 1094 

v. O'Hara 1513 

Linne n. Stout 1604 

Linthicnm v. Tapscott 1099 

Linton v. Bute 818 

Linville ». Savage 108O 

Lippincott v. Leeds , 1260 

Lipman v. Jackaon I486 

Lissa o. Posey 1081 

Litchfield v. Johnson 1142, 1145, 1146 
Litt v. Cowley 883, 887, 888, 899 

Littel, Sec. Manuf. Co. r. Miller 1397 
Little v. Brown 1066, 108O 



3igitiz eC by GOOgk 



TABLE OF CASES. 



Little v. Rogers 
». Sexton 
v. Vredenburgh 



116S, 1269, 
1619 

Littlejohn r. Millirons 1257 

Littleton Sav. Bk. v. Osceola 

Land Co. 1240 

Live Oak, The 1T98, 1605 

LiTennore tr. Wright 1481, 1432 

Livingston v. Mildrum 1218, 1681 

v. Newkirk 1101 

L. L. Lamb, The 1704 

Lloyd, in re 788 

Lloyd v. Hibba 1322, 1262 

Loaneri' Bank p. Noatrand 232 

Locke if. Lewis 794 

v. Prescott 248 

Lockett e. Nicklin 856 

Loekwood n. MechMacs' Nat. 

Bank S77 

Loeb v. Blum 904 

v. Peters 8S7, 885, 887, 946, 

949, 964 

Loewenberg p. Arkansas & L. Ry. 



Co. 



294 



Lofton v. Moore 1164 

Logan v. Attiz ' 1231,1032,1089 

p. Boyle Ice Hack. Co. 1550 

u. Taylor 1487 

Logwood v. Robertson 1069 

X-omax p. Dora 1199, 1571 

v. Le Grand 576 a, 608, 778 

Lombard v. Johnson 1568 

London & N. W. Ry. Co. t>. Bart- 



lett 



919 



tralia o. White 244 

Long p. Burke 1074 

r. Caflrey 1389a, 1500 

v. McLanahan 1282, 1310 

0. Pace % 1102 

Long Island, fa. Transp. Co., 

in re 1806 a 

Long Island R. R. Co., in re 881 

Longstreet r. Philo 1094 

Lougatreth r. Pennock 960 

Lougwell c. Ridlnger 600 

Longworth it. Handy 115, 187, 147, 
226 
Looker v. Cook 1214, 1304 

tr. Wells 1214, 1418, 1430 

Lookout Hotel Co. n. Mansion 

Hotel Co. 1470 

Lookont Lumber Co. p. Sanford 1974 
Loomis v. Davenport & St. Paul 
R. R. Co. 10S8, 1076, 1086, 1088 



Loonie t>. Hogan 1249, 

Lord o. Collins 

o!Lord 

p. Wilcox 

v. Wormleighton 

Loriug p. Small 

Losie t>. Lumber Co. 

Loss v. Fry 

Loth e. Carty 

Lothian v. Wood 

Lottawanna, The 1676, 
1725, 1729,1780,1731,1' 



1348, 1296 

108, 663, 

644, 731 

1165 

1101, 1102 

122a 

1375 



1379, 1887 
1680, 1703, 
745,1793 a, 



Louie Dole, The 1799 

Louis b. Caller 1409 

Louis Olsen, The 1706, 1739 

Louisa, The 1 799 

Louisa Jane, The 1718 

Louisiana Nat. Bank v. Knapp 1067, 
1092, 1094 
Louisville & Nashville B. R. v. 

McGuire 1019 

Louisville Bank p. Newark Bank 384 
Louisville Building Association v. 

Korb 1462, 1487 

Louisville, E. & St. L. R. R. Co. v. 

Wilson 1648 

Looker v. Cook 1304 a 

Lounsbury v. Iowa M. & N. P. R. 

R. Co. 1290 

Love v. Cox 781 

m. Shartxer 1141 

Lovett b. Brown 982, 98S 

Low, in re 1705 

Low p. Martin 973 

Lowe v. Howard Co. I37S 

LowBry p. Peterson 1107, 1108, 1119 

ti. Steward 60 

Lowry p. Smith 1098 

Loyd v. Krause 12B9 a 

p. McCaffrey 57 

Local p. Campbell 137 

v. Domen 396, 825, 828, 921 

e. Hunter 1313 

p. Peacock 166 

Lucas Co. p. Roberta 1290 

Luce p. Curtis 1463 

Lockett p. White 1163 

Lucy v. Hopkins 1063, 1099 

Luddington p. Gabbert 1116 

Ludgate Hill, The 1693 

LndVowv. Grayall 1188 

Lulu, The 1679, 1681, 1686, 1688, 

1699, 1798 

Lumbard B , Syracuse, B. & N. T. 

R. R. Co. 1387, 1394 

lxiii 



y, Google 



TABLE OF OASES. 



Rnferenoo to Sections. 



Lumbering Maouf. Co. v. School 

Dint. 1376 

Lumbley v. Gilruth 625 

v. Thomas 783 

Lumpkin v. Snook 1503 

Lundy v. Pierson 1110 

Lnneau v. Edwards ITT a, 229 

Lunquest e. Ten Eyck 1131, 11*2 

Lunt v. Bank of North America BT 
Lupin v. Marie 40, 811, 814, 904 

Lupton ". Lupton 1164 

Luscher v. Morris 1218, 1S84 

Lusk v. Hopper 1098, 1116, 1119 

Lutere. Cobb 1556 

Luther u. Arnold 598 

Lute v. Ely 1413, 1536 

Lybrandt v. Eberly 1857 

Lycett v. Stafford & U. Ry. Co. 

16 T4 

Lyde v. Mynn T8 

Lyle ». Barker 1036 

Lynam B. King 12T2, 1316 

Lynch v. Caabman 128T 

v. Cronan 1408, 1412 

Lynde ». Parker 691 a 

Lyndhurst, The 1800a, 1806a 

Lyon v. Champion 1263 

v. ELaer 1226 

ti. Logan 1812, 1600, 1601 

v. McGuffey 1259 

v. New York & N. E. R. R. 

Co. 1651 

v. Ozee 1356, 1382 

Lyons o. Deppen 5BT 

Lyster's App. 1555 



Maanss v. Henderson 
Mabie v. Sines 
Mac, The 
McAllister ». Case 

v. Clop ton. 
McAlpin d. Duncan 1190, 

Mc Alpine v. Burnett 
Mc Arthur v. Porter 
McAuley v. Mild rum 

McBratney v. R. W. & O. 

Co. 
McBride v. Farmers' Bank 
Mc Broom's Appeal 
McCaa v. Grant 
McCabe i<. Fogg 



447 

712 

1677 

1218 

1210 

1286, 1287, 

1290 

1084 

1098 

1218, 1313, 

1543 

R. R. 



1666 
169, 202 
165, 189 

1500 



542, 544 

McCain v. Portis 170, 228 

McCall «. Eastwick 1520 

McCamly v. Waterhouae 1119 

McCaudleas's Appeal 1158 

McCandliah t>. Keen 40, 1063, 1072 

McCanta v. Bush 1190 

McCarthy c. Caldwell 1 263 

v. GrofE 1439 

v. Neu 1555 

McCartney v. Buck 1831, 1333, 1347, 

1361, 1555 

McCarty v. Burnet 1272, 1274 

r. Carter 1239, 1245, 1258, 

1256, 1257, 1280 

v. Van Etteu 1421 

v. 'Williams 10T4 

McCaalin v. State 1116, 1124, 1127 

McClintic v. Wise 1119, 1120 

McClintock v. Criswell 1277 

o. Rush 1407, 1421 

McClure v. Harris 1086 

McColl v. Fraser 1180 

McCombie v. Uavies 20, 307, 460, 987 

McCombs o. Becker 543, 548 

McConnell t>. Beattie 1108, 1119, 

1122, 1126 

McCorkle v. Herman 1294 

MnCormack v. Phillips 1184, 1559 

McCormick v. Hadden 820 

x. Lawton 1218,1263, 

1264, 1578 

it. Los Angeles W. Co. 

1357 

McCoy v. Grandy 1131, 1144, 1145 

t>. McCoy 229 

t>. Quick 1425, 1037, 1571, 

1600 

McCraw v. Gilmer 814 

MnCray v. Samuel 6T2 

McCready v. Rumaey 877, S79, 368 

M"Cree v. Campion 1361, 1476 

McCreery a. Clafflin 564 

McCrillis v. Wilaon 724 

McCrisaken v. Osweiler 758 

McCristal e. Cochran 1309 b, 1353 

McCru i'. Campion 1475 

McCue v. Whitwell 1252, 1514 

McCullough v. Baker 1613 a 

t>. Caldwell 692 a 

v. Flonrnoy 229 

v. Kibler 468 

McCntchon v. Wilkinson 456 

McDaniels v. Robinson 603, 504, 618 

McDearmid v. Foster 749, 769, 776 

McDermott v. Palmer 1849 



3igitiz eC by GOOgk 



TABLE OF CASES. 



McDole v. Purdy 1063, 1067, 1071, 
1088 
McDonald v. Backns 1190, 1575 

v. Beach 788, 790 

v. Bennett 641, 658 

u. Elj-too Lsnd Co. 1071 
r. Kelly 1223, 1498 

d. Lindall 1423 

v. Min nea poll a Lumber 

Co. 1371 

v. Napier 146, 167, 203 
■ v. The Nimbus 1735,1748, 
1807 
v. Rosengartcn 1452, 1493 
v. Second Ave. R. R. 

Co. * 197 

p. Smith 217,218 

v. Willis 1451 

McDonnell v. Dodge 1238 

McDonottgh v. Cross 1086 

McDougall v. Crapon 745, 749, 768, 

997 

McDowell v. Bank of Wilmington 241, 

377, 891, 398 

r. Second Ave. R. R. 

Co. 196 

McElroy o. Braden 1289 a, 1502 

v. Dies 6.12 

HcElwee it. Sandford 1401 

M'Ewan v. Smith 823, 852, 881, 958 

McFarland v. Farmer 820 

ii. Wheeler 22, 24, 731, 

740, 997, 1001 

McFetridge t>. Piper 927, 929, 937, 

940 

McGee v. Fitzer 556 

McGhee t>. Edwards 499, 502, 504, 

641, 691, 692 a, 744 

McGill u. Howard 

McGillick v. McAllister 

McGiniua t>. The Grand Turk 1715 

McGinniss t>. Purring ton 

McGirr v. Sell 

McGlaufiin v. Beeden 1392 

McGonigal v. Plummer 1076, 1086 

McGrade ti. German Savings Inst. 57 

McGraw t>. Bayard 1199, 1504, 1559, 

1580, 1585 

d. Godfrey 1259, 1613 

McGreary v. Osborne 1272 

M'Gree p. Campion 1861 

McGregor v. Comatock 187, 188, 214 

v. Cook 1375 

ti. Matlhii 1119 

McGrew v. McCarty 1310 

McGngin o. Ohio River R. R. Co. 

1231, 1235, 1283, 1554 
vol. i. « 



McGninness t>. Boyle 1316 

McHendry v. Reilfy 1069 

McIIenry r. Knickerbocker 1301 

v. PhiU. W. & B. R, R. 



Co. 



284 



Mach v. Colleran 1294, 1297, 1807 
Machir v. Burroughs 1260 

Mcllvaio e. Heatonville & Mantua 

R-R-Co. 1378.161S 

Mcllvane v. Hilton 507, 515 

Mclndoe v. Morman 1 1 26 

Me In tire v. Barnes 1287 

Macintosh v. Thurston 1248, 1252, 

1458, 1572 

M'Intyre v. Carver 14, 26, 731, 733 

Mclntyre r. Trautner 1190, 1445, 1616 

M'Kay t>. Green 1101, 1182 

McKee v. Travellers' Ini. Co. 1491, 

1589 

McEeen v. Hazeltine 1356, 1520 

McKelvain v. Allen 1110 

McKelvey v. Jarvia 1222, 1308 

v. Wonderly 1211 

McEelvy'a Appeal 146, 148> 

McKenzie v. Baldridge 1127 

v. Wardwell 214 

McKillip v. McKillip 1071 

McKim v. Moody 1146 

M'Kinney n. Reader 632 

M'Kircher t>. Hawley 698, 599 

McKleroy v. Cantey 602 

v. Tulane 1126 

McKnight ». Parish of Grant 1204 

v. Spain 100 

v. Washington 1231, 1289, 

1290 

Mackreth t>. Symmons 1061, 1074, 

1075, 1083 

McLaren v. Hall 1262 

McLaughlin p. Green 1210, 1539 

v. Reinhart 1505, 1524 

v. Riggs GOO 

McLaurie v. Thomas 1086, 1092 

McLean c. Breithaupt 935 

v. Fleming 274 

v. Klein 543 

v. Lafayette Bank 398, 407 

v. Yonng 1424 

M'Learn v. M'Leilan 1063 

McLeodv. Capell 1225 

v. Evans 37 

McMahon e. Bridwill 1306 

v. Vickery 1341 

McManigle e. Crouse 676 

McManns o. Thurber 68 

McMaater v. Merrick 998,1002,1412 

McMechaa 0. Baker 1216 

1x7 



y, Google 



TABLE OF CASKS. 



; Reference to Sections, 



McMillan v. Phillips 1286 

■>. Seneca Lake, 6. & 

W. Co. 1286,1290, 

1298 

McMillan v. Rose 1121 

McMonagle v. Nolan 1748 

McMurray v. Brown 1619, 1524, 1525 

v. Hutcheson loll 

v. Taylor 1532 

McMurrich v. Bond Head Harbor 



Co. 



ST5 



MeNagney r. Frazer 
McNsil v. Ziegler 806, 850 

McName v. Raucb 1421 

McNaughton it. City of Elkhart 1492 
McNeal i'. Clement 1512 

McNeal Foundry Co. p. Bullock 1375, 
1878, 1587 
McNeal Pipe Co. v. Howland 1378, 

1480 

McNiel, ex parte 1 725, 1 729 

McNutt v. Slrayhorn 789 

Macon & Western R. R. v. Meador 

895, 901, 902, 937, 960 

McPhee v. Guthrie 1145 

v. Kay 1451 

v. Litchfield 1401 

McPheeters v. Merimac Bridge 

Co. 1375, 1618 

McPherson v. Cox 115, 119, 134 

i!. Johnson 1123 

v. Walton 1216 

McQuaide r. Stewart 1308 

McRea v. Creditors 1022 

McRimmon o. Martin 1084 

McSorlcy u. Larissa 1142 

McWhirteru. Swatter 1092 

McWiltiams v. Allen 1414, 1418 

p. Brookens 1127 

v. Jenkins 166, 229 

Macy v. De Wolf 1697 a 

Madaris v. Edwards 1486 

Madden v. Barnes 1074 

v. Kempster 434 

Maddox v. Oxford 1178 

Madrid, The 1722, 1729, 1771 a, 

1778, 1793 a, 1794 

Maggie Hammond, The 1720 a, 1729 

Maggie P., The 1715 

Magruder v. Peter 1099, 1116 

Manure v. Card 1729, 1730 

MaLon v. Guilfoyle 1512 

Mahone B. So. Tel. Co. 201 6 

Main, Tiie 1713 

Mairs b. Bank of Oxford 1084 

Major v. Bukley 1084 

p. Collins 1312, 1495, 1610 

Ixvi 



Major v. Gibson 192 

Makings n. Makings 1163, 1164 

Malbon v. Birney 1512, 1513 

Malcolm tr. Scott 43, 55 

Mallory v. Abattoir Co. 1232, 1304 a 

ii. Burrett 2B9 

ii. Gillett 1031 

v. Water Works 1290 

Malmgren u. Phinney 1458, 1562 

Malone's Appeal 1318 

Malone t>. Big Flat. Min. Co. 1412 

v. Sharookin Valley & 

Pottsville R. R. Co. 1665 
Matter v. Falcon M. Co. 1390, 1897, 
1401, 1556 
Man v. Sbiffner 423, 425, 582 

Manasses v. Dent 603 

Manchester v. Searle 1242, 1466 

Mandeville v. Reed 154K 

Manhasset, The 1725, 1806 a 

Manhattan L. Ins. Co. i>. I'auli- 

son 1439 

Manhattan, The 1722, 1722a 

Manifold v. Jones 1164, 1172 

Manly v. Downing 1406, 1407, 1418, 

1585 

v. Slason 1063, 1074, 1083, 

1066 

Mann v. Corrigan 1647 

v. Forrester 423, 447, 448 

v. Schroer 1600 

Manning v. Frazier 107! 

v. Hollenbeck 493,520 

ft. Wells 013 

Manningford u. Toleman 248 

Mansfield v Dorland 160,165 

Manuel v. Reath 632 

Marble v. Lumber Co. 1329 

Marble Lime Co. V- Lorsdbarg 

Hotel Co. 1439, 1569 

Marcardier v. The Chesapeake 

Ins. Co. 1692 

Marcella Ann, The 1747 

Marengo, The 1697 a 

Mat-field n. Goodhue 47S 

Margart v. Swift 552 

Maria and Elizabeth, The 1 T81 a, 
1783 
Marine & F. Ins. Bank p. Jauncey 55, 
58, 60 
Marion, The 1723 

Mark v. Murphy 1480 

Mark Lane, 1'he 1713 

Markoe ii. Andras 1111, 1119 

Marks v. Laliee 743 

M ark w aid n. Creditors 921 

Marquat r. Marquat 1092 



3igitiz eC by GOOgle 



TABLE OF CASES. 



Beferenc* to Section!. 



Marquette Manuf. Go. v. Jeffery 830 

Marrener e. Futon 1218, 1304, 1929 

Marry at t v. Rile; 15S6 

Man v. McKay 1187 

Mvaeillea Manuf. Co. v. Morgan 695 

Marsh v. Alford 1261 

». ElBworth ill 

p. Flint 729 

v. Truer 1282, 1859 

v. Oneida Bank 241 

e. Titus 67, 846 

r. Turner 1063, 1084 

o. Union Pacific Ry. Co. 295 

Marshall* Cooper 158, 217 

v. Curtis 1729 

v. Giles 571, 572 

v. Kaighn 1841 

v. Meech 184, 187, 188, 193, 

209, 214, 220, 231 

Marston v. Baldwin 815, 820 

v. Kenyon 1317, 1413 

v. Stickney 1243, 1546 

Martin, inre 1450 

Martin o. Adams 813 

v. Black 569,577,591 

v. Cauble 1086, 1090, 1099, 

1100 

t>. Eversal 1327, 1331 

v. Harrington . 229 

v. Hawks 209, 212, 214 



i. Hewi 



108 



v. Kanouie 

v. Kennedy 177 

v. Morgan 1290, 1298, 1593 

n. U'Bannon 1106, 1119 

v. Pepall 1271 

v. Robert! 1185, 1236 

v. Simmons 1421 

v. Smith 305, 1069 

v. Stearns 553, 575, 592, 616 

v. Swift 1199, 1614 

o. Wakefield 724, 728 

Martindale v. Smith 805, 852, 861 

Martine v. Nelson 1361 

Martino Cilento, The 1806 

Martsolf r. Barnwell 1465 

Marvin v. Marvin 1563 a 

v. Taylor 1578 

p. Wallis 809 

Mary, The 1695 

Mary Bell, The 1680 

Mary Chilton, The 1681, 1682, 1683, 

1685, 1688 

Mary Gratwit-k, The 1729 

Mary McCs.be, The 1684 

Mary Morgan, The 1686, 1691, 1811 

Marye r. Dyche 551, 562, 625 



Maryland Brick Co. v. Spilman 1313, 

1329, 1520 

Masich v. Shearer 1084 

Maskell v. Farrington 1164 

Mason v. Hatton 806 

v. Germaine 1408, 1413, 1470, 

1*94, 1495 

v. Lickbarrow 857, 859 

r. Morley 1011 

r. Redpath 865, 924 

v. Thompson 503, 504, 518 

v. Wilson 923, 929 

Mass. 11-od Co. v. Hooper 375 

Mass. & So. Const. Co. v. Gill's 

Creek 154,157,165,166,167,1890 

Massey v. Me II wain 77 

Masters v. Barreda 860 

v. Templeton 1086, 1091 

Maaterson v. Cohen 1114 

v. Puller, 1108 

Mathews v. Burke 576 a 

v. Davis 1146 

Mathiaa t>. Sellers 6, 731, 782 

Matlock v. Matlock 787 

Matthews v. Brewing Asso. 1283, 

1435 

u. Creditors 620 

f. Gibbs 333 

n. Menedger 418, 466 

v. Stone 564 

Matthewson v. Saunders 1163 

Matthias v. Mesnard 564 

Mattie May, The 1713 

Mattison t>. Young 384 

Mattlx v. Weand 1063, 1079, 1080, 

1091 

Manch Chunk v. Shorts 1344 

Maud Carter, The 1722, 1791 

Maui Webster, The 1770 

Mauney v. Ingram 841 

Maupin v. MuCormick 1074 

Maxen v. Landrum 433, 437 

Maxey v. White 625 

May ti. Lewis 1126 

f. Wilkinson 1083, 1099, 1123 

May Queen, The 1793 

Mayer v. Mutcbler 1216, 1286 

Ma'yes p. Hendry 1090, 1100 

v. Kuffners 1231, 1397 

Mayfield v. White 632 

May ham v. Coombs 1086, 1088 

Maynard i>. Anderson 1018 

v. Ivev 1406, 1412, 1554 

Mayor tf. Crawford 1299 

Mayre v. Dyche 562 

Mayrhofer v. Board of Education 

1370 

lxrii 



y, Google 



TABLE OF CASES. 



Reference to Sections. 



Mays v. Rogers 1174 

Head v. Thompson 614 

Meakin v. Dnvall 1172 

Meany v. Head 10 

Mear» v. Kearney 1090 

Mechanics' Bank v. Earp 398, 408 

v. Merchants' 

Bank 377 
v. Seton 376 

Mechanics' Mutual Loan Associa- 
tion «. Albertson 1216 
Mechanics' P. M. Co. e. Naet 1421 
Medewe'B Trust, in re SSI, 252 
Meehan v. Williams 1S43, 1608 
Meeker v. Wilson 451, 1011 
Meeks v. Sims 1532 
Mehrle v. Dunne 1613 
Meier v. Meier 72 
v. Thomas 626 
Meigs », Dimock 1063 
Meletopulo v. Banking 907 
Meiiuk v. Benedict 372 
Mollis v. Race 1235 
Mellor o. Valentine 1235, 12S6, 1258, 
1441 
Melton c. CoSelt 1127 
Memphis v. Laski 154 a 
Memphis & L. R. R. Co. v. Freed 

870, 910 
Menagh v. Whitwell 789, 792, 795 

Menier ;;. Hooper's Telegraph 

Works 87 

Menken n. Taylor 1120, 1122 

Menominie, The 1676, 1699, 1750, 
1773 
Menzel c Tubbs 1315 

Mercantile & Exchange Bank v. 

Gladstone 901 

Mercer v. Cross 611 

v. Graves 156, 216, 218 

Merchant v. Humeston 1406, 1422 

v. Ottumwa Water 

Power Co. 1494 

v. Sessions 233 

Merchants' & Mechanics' Sav- 
ings Bank v. Daabiell 1288 
Merchants' Bank v. Curyea 825 
v. Hibbard 825 
v. Shouse 375, 381 
391, 
Merchants' Bank of London i>. 

Maud 246 

Merchants' Banking Co. o. Phte- 

nix Bessemer Steel Co. 801, 827, 

910 

Merchants' Nat. Bank v. Coates 67 

v. Pope 478 

Ixviii 



Merkle v. O'Neal 600 

Merrick, in re 745 

Merrick t>. Avery 1721, 1801 

v. La Hache 620 

Merrigau v, English 1285, 1304, 

1304 o, 1382, 1470 
Merrill, in re 67 

Merrill o. Bartlett 1697 a 

v. Bickford 1163 

e. Hunnewell 836 

v. Ressler 543 

Merriman v. Bartlett 1392 

v. Jones 1283 

Merrit v. Fisher 616 

Merritt v. Judd 1108 

v. Merchandise 1797 

v. Pearson 1804 a 

t>. Wells 108S 

Memn v. Sherman 1519, 1520 

Merwin v. Chicago 154 a 

Messmore v. Stephens 1081, 1099 

Metcalf v. Hunnewell 1248 

Metcalfe u. Fosdick 548 

v. Hutchinson 1164 

Mexal v. Dearborn 1016 

Meyer v. Berlandi 692, 1235, 1382, 
1467 
v. Bloom 566 

v. Broadwell 1262, 1269 

v. Construction Co. 1470 

v. Delaware R. R- Con- 
struction Co. 1529 
v. Hornby 1470, 1625, 1633 
i). Oliver . 638 
Meyer Bros. Drug Co. r. Brown 1245, 
1470 
Meyers v. Bennett 1243, 1543 
v. Burnett 1235 
v. Thomas 1312 
Meyerstein v. Barber 465 
Mickelson v. Negley 616 
Micou v. Ashurst 1126 
Middlesex Freeholders v. State 

Bank 223, 325 

Middleton v. Fowler 262 

v. HiU 215 

v. Magnay 1162 

Middletown Savings Bank v. Fel- 

lowes 1247, 1248, 1458, 1472 

Midland Ry. Co. v. Wilcox 1492, 

1494, 1495, 1619, 1645 
Mildred, The 1677 

Milgate o. Kebble 802 

Miles, ex parti "'*" 



Miles v . Gorton 



832, 338, 841, 852, 
863, 878, 96! 
James 554, 614 



3igitiz eC by GOOgk 



TABLE OF OASES. 



Reference to Sections. 



Miles u. New Zealand Alford Es- 
tate Co. 389 
Milikin b. Jones €41 
Millard b. Rarvev 1139 
v. Webster 923 
b. West 1581 
Miller's Appeal 864 
Miller b. Atlee 151 
v. Barroll 1436, 1437, 1542 
b. Batchelder 1441 
v. Bedford 1222 
v. Blow 1178 
v. Brown 1382 
p. Clark 1248 
v. Henderson 1523 

e. Hershey 1222 
v. Hoffman 1187, 1211, 1370, 

1868, 1600 
p. Hollingtworth 1235, 1262, 
1264, 1325 
p. Mclntyre 1583 

v. Mansfield 264 

v, Marston 503, 641, 644 

p. Mead 1246, 1251, 1252 

E>. Moore 1218, 1532, 1535, 

1536, 1559, 1599 

f. Morgan 1769 
f. Newell 158, 189 a, 207, 227 
r. Price 787 
v. Seal 1 201 
v. Sliepard 1315,1319 
v. Stoddard 1460 
v. Ticknor 1583 

Miller Hardwood Lumber Co. v. 

Wilson 1247 

Millers v. Farmers' & Mechanics' 

Bank 257 

Millikeo v. Warren 800, 802, 852, 853 

MiUikin v. Shapleigh 261 

Milliman v. Netier 30 

Mills b. Ball 919, 924, 930, 936 

b. Heenej 1609 

r. Land Co. 1493 

». Matthews 1272, 1276, 1277, 

1280 

E-. Shirley 515 

b. Terry Manuf. Co. 1326 

MillupB. Ball 1213 

Milaer tr. Cooper 553, 616 

V. N orris 1483 

». Ramsey 1101 

Milwain o. Sanford 1532 

Mims b. Macon & W. R. R. Co. 

1062, 1069, 1074 

Miner b. Beekman 1139 

P. Hoyt 1296, 1300 

Miner™, The 1 704 



Mining Co. v. Cullins 1366 

Minna, The 1700, 1705 

Minnitt ». Talbot 1175 

Minor o, Hoyt 1599 

b. Marshall 1401, 1461, 1554 
v. Moore 1382 

Minton v. Lumber Co. 719, 719 a 

Minturn v. Maynard 1697, 1707 

Misa i>. Currie 242, 244 

Misch v. O'Hara 515 

Mississippi, The 1748 

Mississippi Mills v. Union 8e 

Planters' Bank 965 

Mississippi Planing Mill e. Pres- 
byterian Church 1404 
Missonri, Kans. & Tex. Ry. Co. 

». Baker 1629 

Missouri, Kans. & Tex. Ry. Co. 



v. Brown 


1647 


Mitchcl o. Eds 


460,011, 915 


Mitchell b. Butt 


1094 




1077, 1083 


o. Hodges 


1270 


v. Oldtield 


122, 209, 215 


v. Pen Geld 


1202 




273 


u. Stewart 


633 


r. The Magno 


■a 1729 


Mix b. Ely 


1406, 1586 


Mize v. Barnes 


1094, 1110 


Moakes v. Nicolson 


915 


Mobile Mut Ins. Co. v. 


Cutlom 370, 



Mobile Sc Ohio R. R. Co. o. Whit- 
ney 481 
Mobley o. Dent 634 
Mochon v. Sullivan 1184, 1212, 1470, 
1559 
Moeller v. Holthaus 1076 
Moet v. Pickering 974 
Moffat v. Henderson 102 
Mobawk Bank v. Burrows 21 7 
Mohr o. Boston & Albany R. R. 

Co. 906, 919 



H. 


Clark 




786 a 


Molley v 


Hay 




940 


Money v 


hela Nav. Co. 




1109 


Mononga 


. The 


Bob Connell 




1719 


Monroe i 


West 1248, 


125 7 


1469 


Monsoon 


The 




1690 


Montagu 


i>. Mial 


594 


631 


Montana 1 


m v. Deas 1272, 


1519, 


1520 


Montauk 


The 




1704 


Montank 


The, v. Walker 




174 2 


Montieth 


i'. Great Western Print 






ingCo. 




993 




Iziz 







ioogle 



TABLE OF CASES. 



Reference to Section*. 



Montgomery Iron Works v. Dor- 
man 1422 
Montieth v. Kirkpatrick 289 
Moody i). Ischabold 1458 
v. Webster 423 
Mooney v. Hough 603 
v. Musser 470,476 
Moore e. Alexander 1101 

V. Anders 1107, 1119 

o. Bank of Commerce S81, 406 
v. Carter 1502 

v. Erickson 1252 

v. Faison 631 

v. Forrest Mansion Hotel 

Co. 1318 

v. Hitchcock 731 

i). Holcombe 1076, 1077 

v. Ingram 1063 

c. Jackson 1247, 1376 

it. Knight 1129 

it. Lackey 1110, 1111, 1119 

v. Martin 1053 

v. Newbury 1808 

v. Raymond 1092 

v. Rolin 1430 

v. Taylor 228, 233 

ir. The Eobilant 1690, 1810 

v. Westervelt 187 

Moores v. Lunt 1725 

Moran r. Chase 1218, ISIS, 1349 

v. Schnugg 1457 

More v. Bowen 185 

v. Lott 935 

Morehouse v. Collins 1600 

it. Moulding 1199, 1299 
Moreland v. Metz 1101, 1125, 1127 
Moreton v. Harrison 1099 

More wood ». Enefjuist 1 722 

Morey v. Herrick 1178 

Morgan r. Arthurs 1335 

u. Bank of North Amer- 
ica 377, 380 
c. Campbell 551, 553, 5G0, 
614 
it. Carroll 1646 
v. Chicago 4 Alton B. R. 

Co. 1562, 1571, 1655 

e. Congdon 731, 739, 974 

it. Muldoon 1492 

v. Parham 1681 

V. Roberts 161 

v. Stevens 1296, 1329 

it. Taylor 1413 

Morganstern v. Thrift 787 

M onion r. Gray 875 

Moritz r. Lamen 1559 

v. Splitt , 1592 



Morley ,>. Hay 965 

Mornan v. Carroll 1242 

Moloney's Appeal 14S9 

Morrill v. Jenkins 600 

v. Merrill 737, 718 

Morris v. Parker 632 

v. Pate 1080 

it. Shryock 857, 861, 935, 965 
v. Terrell 1146 

v. Tinker 1141 

Morris Co. Bank v. Rockaway 

Manuf. Co. 1310, 1312, 1359, 1470 

Morrison, in re 408 

Morrison it. Brown 1119 

o. Hancock 1304, 1328 

V. Henderson 1222 

v. Minot 1207, 1412 

o. Philippi 1398 

v. Ponder 147, 173 

v. Steamboat (.aura 1532 

v. Whaley 122! 

Morrow v. Turney 641 

Morse v. Androscoggin R. R. Co. 745 

ii. Cooke 203 

v. Dole 1465 

v. School District 1252 

it. Sherman 800 

Mors-le-Blanch tr. Wilson 309 

Morton it. Austio 1010, 1532 

v. Hal lam 201 a 

v. Naylor 47, 48, 60 

Mosely v. Norman 169, 193, 203, 

217, 21S 

Moses v. Franklin Bank 57 

Moses Taylor, The 1725, 1729, 173*. 

1750 

Mosher v. Independent School 

Dist. 1375 

Moshier it. Meek 1063, 1073, 1076, 

1092 

Moss's Appeal 632, 633 

Moss it. Shear 1141 

Mott v. Lansing 1731, 1756, 1809 

Mottram v. Heyer 931, 932, 933 

Moule, ear parte 227, 22« 

Moulton r. Bennett 150 

it. Greene 732, 741 

v. Norton 571 

Mount v. Williams 7 

Mount Holly Paper Co.'s Ap- 
peal 376 
Mount Tacoma Manuf. Co. v. Cul- 

turn 1421 

Mountain City Market, ftc. Abso. 

it. Kearns 1272 

Mowers v. Fethers 498 

Mowrey it. Valid ling 1102 



,oogl< 



TABLE OF CASES. 



Mowrv v. Hill 1323 

Motley t>. Shep&rd 1492 

Muanch v. Valley Nat Bank 241, 

242, 999 
Mnirp. Croas 1S19 

p. Fleming 428 

Mnldoon v. Pitt 1235, 128S, 1281 

Mnlnerrin ». Hill 1116 

Mulholland v. Thompson Houetou 

Electric Light Co. 1751 

Mullu. Jones 1411 

Muller d. Pondir 868 

Mulligan p. Mulligan 1367 

Molliner v. Florence 833, SIS, 522, 
G23, 525 

Mnlrey r. Barrow 1207, 1294, 1441, 
1500 
M am ford p. Brown 1276 

Mnndine p. Berwin 1185, 1226 

Hundy u. Monroe 1558 

e. Mudsod 33 

Manford v. Pearce 1126, 1127 

Monger p. Curtis 1218, 1460, 1543 

p. Lenroot 721, 1645 

p. Silsbee 1318 

Mnnn w. Burch 57 

Muddi o. Isle of Wight Ry. Co. 1674 
Monsell v. Carew 550 

Munjon p. Porter 641, 658, 688, 684, 
743 0,1018, 1021, 1025, 
1030 
March r. Wright 820 

Murphree v. Countiss 1092 

Murphy p. Adams 719, 990, 1495, 

1498 
v. Buck man 1513 

t. Lippe 1009 

v. Morton 1502 

«. Murphy 1260, 1268, 1323, 
1365 
Morphy Tugs, The 1710, 1717 

Murray, in re 131 

Marrav p. Able 1119 

b. Earle 1224, 1253, 1500, 

1507 
r. Gonverneur 1133 

p. Jibaon IBS 

p. Keyes 1260 

p. Pinkett 249 

p. Rapley 1189, 1382, 1559 
v. Witte 1098 

Mu&hlitt p. Silverman 1G54, 1556 

Htiskegan, The 1728 

Muskegon Booming Co. t. Under- 
bill 821, 919 
Mntpratt p. Gregory 563, G64 
Mumod b. Elliott 811 



Mutual Benefit L. 


Ins. 


Co. 




Bowand 1316, 


136 J, 


1459, 


1469, 






1470 


14-72 


M. Vandercook. The 




1706, 


1718, 


1781, 1781 a 


1787 


1798 


Myer p. Dupont 






1621 








418 


Myert v. Buchanan 






1242 


v. McHugh 
p. Mayneld 






175 






618 


r. Smith 






622 


v. Uptegrove 


73 


, 739 


741, 

1009 


Mystic, The 


1717 


1788 


1792 



N. 

418, 430 
1086 

Napier v. Jones 1106 

Nash i. Chicago, M. k St. P. By. 

Co. 1289, 1290 

r. Mosher 986,988, 1796 

P.Taylor 1163 

Nass v. Chadwick 1102 

Nathan p. Shivers 337 

National Bank ». Danforth 1457 

p. Eyre 217 

p. Insurance Co. 250 

v. Sprague 793, 1248, 

14GS, 1409 

p. Stewart 384 

p. Watson to wd 

Bank 376, 403 
National Foundry Works n. Oconto 

Water Co. 1335, 1375, 1878, 1618 
National Lumber Co. p. Bowman 

1431, 1479 
National Valley Bank p. Bar- 
man 1121 
Nay lor p. Denote 865, 866, 965 
p. Lane 214, 217, 220, 222 
p. Mangles 978 
Nazareth Institute p. Lowe 1203 
Neal p. Murphey 1119 
p. Speigle • 1086 
Neale p. CUutice 622 
p. Janney 375 
v. Beid 79 
Neat* p. Ball 865, 867 
Neelp. Clay 1071, 1107 
Neeley p. Rulers 1125 
p. Seanght 1200, 1589, 1590 
Neely p. Goodwin 1102 
Neese p. Biley 1095, 1098 
NeifertP. Ames 617 
' lixi 



3igitiz eC by GOOgk 



TABLE OF GASES. 



Reference to Sections. 



Neil v. Kinney 1487 

Neil Cochran, The 1770 

Neill s. The Franci* 1S91 

Neilson v. Iowa Eastern R. R. Co. 
777, 1201, 1286, 1331, 1334, 1462 a, 
1470, 1619, 1620, 1624, 1625, 1646 
Neigh v. Graham 326 

Nellie Bloomfield, The 1805 

Nellis v. Bellinger 1251, 1254, 1265 
Nelson, The 1796 

Nelson v. Allen 1144, 1145 

v. Association for Protec- 
tion of Wrecked Prop- 
erty 3S3 
e. Campbell 1310, 1372 
v. Cover 1262, 1264 
v. Kelly 77 
v. Wilson 196, 203 
t>. Withrow 1309, 1323, 1365, 
1409, 1419 
Nesbitt, ex parte 122 
Nesbitt v. Bartlett 569, 676 a, 5/7, 
581, 582, 616 
Nesmith v. Dyeing Co. 460, 461, 465 
v. Washington Bank 375, 
404 
Ness v. Wood 1239, 1243, 1280 
Nestor, The 1681, 1685, 1807 
Nevada, The 1799 
Nevan t>. Roup 15, 731, 732, 745, 
1000 
Neversink, The 1679, 1681 
New v. Pyle 608 
New Castle N, Ry. Co. r. Simpson 

1665 
New Champion, The 1680, 1 

New Ebenezer Aaso. v. Lumber 

Co. 1436 

New England Car Spring Co. tr. 
Baltimore & Ohio R. R. Co. 1 

1627, 1650 
New Haven & Northampton R. 
R. Co. v. Campbell 316, 

New Jerst'v Midland Ry. Co. v. 

Wortendyke 
New London & Brazilian Bank 

v. Brocklebank S87, 399 

New Orleans v. Vaugbt 
New Orleans Nat. Banking Asso. 

V. WiltE 376, 377, 381, 

New York & Cleveland Gas Coal 
Co. t>. Plumer ] 

New York & N. E. R. R. Co. v. 
Sanders 

Newberg v. Schwab 

Newberry o. Detroit & Lake Su- 
perior Iron Co. 



Newbert v. Cunningham 158, 165, 
214, 232 

Newcomer t>. Hutchlnga 1421 

Newell v. Campbell Mach. Co. 1223 
v. Clark 590, 628 

b. Haworth 206 

v. West 1277 

Newhall v. Central Pacific E. R. 



Co. 



950 



v. Kastens 1199,1283, 1644 

v. Vargas 861, 862, 863, 869, 

878,881, 887,890, 

931 

Newhoose o. Morgan 1200 

Newland, ex parte 119 

Newman v. Bank 625 

v. Brown 1397 

t>. Moore 1106 

Newsom u. Thornton 869, 964 

Newton v. Harland 122 a 

v. Hull 1127 

o. Porter 115 

v. Trigg 509 

New York Sensation, The 1756 

Ney <■. Dubuque & S. City R. R. 

Co. 1629 

Niagara, The 1733, 1756 

Nice r. Walker 1502 

Nichol t>. Dunn 1092 

Nichols v. Culver 1808, 1311, 1354, 

1406, 1410, 1413, 1427, 

1445, 1604 

t>. Glover 89, 1092, 1098 

v. Halliday 513,515 

v. Hart 881 

v. Pool 128, 161 

Nicholls v. Le Feuvre 921, 922, 923 

Nicholson v. Bower 865 

v. Chapman 483, 484, 485 

Nickel ii. Blanch 1319 

NIeoU v. Mumford 788 

p. Nicoll 209,217, 219 

Nippert v. The J. B. William a 1699 

Nix v. Oliver 931, 982 

Nixon v. Gregory 21 7 

Noar v. Gill 1222, 1330, 1332 

Noble v. Adams 910 

Noe u. Gibson 591 

Noel p. Murray 1808 

v. Temple 1201 

Noerenberg v. Johnson 1460 

Nolan v. Lovelock 1413 

Nolander p. Burns 1249 

Nolen v. Royston 606 

Noll v. Swineford 1404, 1417 

Norcross t\ Norcross 905, 511 

Nordemeyer v. Loescher 269, 298 



3igitiz eC by GOOgle 



TABLE OF CASES. 



Reference to Section*. 



Nordyke & Mann on Co. v. Hawk- 
eye Woollen Milla 1272, 1*79 
Norfolk k Western R. R. Co. r. 

Howison 1229 

Norman, The 1680, 1682, 1690, 1691 
Norman p. Harrington 1068 

Noma's Appeal 1470 

North f. La Flesh 1262, 1264, 1265, 
1269, 1410, 1412, 1600, 160S 
North Presbyterian Church v. 

JeTne 1199 

North River Construction Com- 
pany, in re 73,1682 
North Star, The 1699 
North Star Iron Works Co. v. 
Strong 1869, 1421, 1428, 1426 



Nortbey v. Field 888, 890, 981, SS3 
Northwestern Cement Co. c. Nor- 
wegian Seminary 1421 
Norton v. Switcer 1729 
Norway, The 1025 
Norway Plains Co. v. B. St M. 

R.R. 284 

Norwich Co. v. Wright 1781 a 

Notara v. Henderson 288, 287 

Now Then, The 1688 

Noyes p. Bnrton 1643, 1648, 1564 

p. Kramer 1069, 1074, 1078 

Nugent v. Priehatsch 1081 

Nunan v. Doyle 1599 

Nutter v. Fouch 1069, 1076, 1098, 

1099, 1100 

Nyliolui, tx parte 338 

Nystrom v. London, &c. Mortg. 

Co. 1421 

O. 

Oaken t>. Moore 702, 731 

Oakfurd v. Drake S69 

Oakley p. Van Noppen 1219 

Oates v. Haley 1218, 1301, 1648 

Oatfield v. Waring 71 

Ober v. Gallagher 991, 1110, 1119 

Obermtere. Core 806, 811, 818 

O'Brien v. Hanson 1257, 1259, 1384 

r. Joyce 1142 

v. Norris 884, 885, 887, 965 

p. Pettis 1201 

Ocean Ins. Co. v. Rider 162, 165 

Ocean Spray, The 1706 

O'Connor p. Current River R. R. 

Co. 1493, 1494, 1597 
p. Schaeffel 1608 

v. Smith 1071 



Odd Fellows' Hall v. Masser 1829, 

1330, 1408, 1532, 1538 

O'Donnell v. Kramer 1287 

Odorilla, The, p. Baizley 1726, 1760, 

1810 

Odum c. Loomis 1226 

O'Farrell u. Nance 671 

Offutt v. Trail 622 

Ogden i'. Alexander 1393 

Ogz r. Tate 1245 

Ogle v. Atkinson 869, 884, 911, 913 

p. Ogle 1069, 1092 

v. Tayloe 1167,1172 

O'Halloran t>. Leachey 1286 

O'Hara v. Jones 554, 686, 588 

Ohio & Miss. R. R. v. Kasson 418 

O'Keef v. Seip 1202, 1236, 1237 

Okisko Co. c. Matthews 1484 

Okolona Savings Inst. v. Price 664 

Old Natchez, The 1677 

Olds p. Tucker 147 

Ole Oleson, The 1696, 1703, 1713 

O'Leary v. Burns 1210, 1600 

Olga, The 1790, 1791, 1792 

Olive v. Smith 424, 449 

Oliver v. Davis 1273 

v. Davy 1468, 1460 

v. Fowler 1224, 1494 

t>. Moore 465 

c. Phelps 626 

p. Sheeley 238 

v. Woodman 702, 710, 727, 

729 

Oliwell v. Vandenhalven 185, 189 

Olmstead v. Brush 1165 

Olmsted p. McNall 1341 

Olson v. Heath Lumber Manuf. 

Co. 1455 

Olympic Theatre, in re 1328, 1329, 

1354, 1387, 1461 

Olyphant v. St. Louis Ore & Steel 



Co. 



92 



O'Malley v. Coughlin 1225, 1235, 

1261 
Ombony v. Jones 1257, 1274 

Onderdonk v. Voorhis 1733, 1756 

One Hundred and Fifty-one Tons 

of Coal 311 

O'Neil v. Garrett 929, 940, 965 

o. Fercival 1261 

p. St. Olafa School 1235, 

1304, 1392 

Onore, The 1716 

Oppenheim p. Russell 267, 901, 919, 

942, 965 

Oppenheimer p. Morrell 1334, 1352 

Orchard v. Rackstraw 60S 

lxxiii 



3igitiz eC by GOOgk 



TABLE OP CASES. 



Orient, The 1781, 1781 a, 1786 

Orleans, The 1697 a, 1725 

Orleans, The, v. Phcabos 1706 

Onne v. Roberts 1081 

Ormerod v. Tate 142 

Orpheus, The 1722 

On- p. N. W. M. L. Ins. Co. 1199, 

1313 
Orrick v. Durham 1084, 10S7 

Ortmann o. Plummer 1069, 1071 

Ortwine v. Csskey 1434, I486, 1449, 

1578 
Osborn, Succeaaion of 1063 

Osborn v. Gaotz 815 

Osborne ti. Dunham 115 

v. Royer 1119 

Osgood p. Groning 382 a 

Oster o. Kabeneau 1211, 1423, 1426 
Othmerf. Clifton 1290 

Otis o. Dodd 1235, 1236, 1251, 1265, 

Otly t>. Haviland 1210 

Ottawa, The 1770 

Ottiwel) v. Muxlow 1251, 1254 

Oury v. Saunders 1093 

Outcalt v. Durling 1086 

Outton v. Mitchell 1098 

Overall v. Taylor 1083 

Overly D.Tipton 1127 

Owen v. BaDkhead 1101 

v. Iglanor 427 

v. Mason 208, 209 

v. Moore 1100 

u. Reed 991 

Owens v. Ackerson 1599 

v. Claytor 1164 

v. Davis 1745 

v. North™ p 1238 

e. Weedman 800, 807, 85! 

Oxenham v. Esdaile 1 



Pacific, The 1696, 1722, 1724, 1728 

Pack v. Simpson 712, 729 

Packard v. Sloop Louisa 1805 

Packet, Ship 471 

Paddock a. Stout 1371, 1532, 1539, 

1549, 1580 

Page v. Bettes 1211, 1431, 1432, 1435, 

1437 

v. Edwards 820 

v. Middleton 564 

Paige o. Peters 1S8S 

Paine v. Bonney 1317 



i. Gill 



727 



lxxiy 



Paine v. Hall's Safe and Lock Co. 625 
v. Tillinghast 1237, 1252, 1254 
v. Woodworth 727 

Pairo v. Bethell 1372, 1560, 1577, 

1612 

Palmer, ex parte 1160 

Palmer t>. Chandler 1102 

p. Hand 839 

«. Harris 1126 

v. Howard 812,830 

d. Lorillard 332 a 

e. Tucker 703, 1001 
v. Uncas M. Co. 13S6, 1609, 

1532 

v. Van Orden 189 

Panama, Tbe 1798 

Paola R-, The 1678, 1698, 1709 

Papineau v. Wentworth 699 

Paragon, The 1778,1781 

Parberry t>. Johnson 1520 

Paris e. Tail 548 

Parke Co. p. O'Connor 1375 

Parker v. Alexander 993 

o. Anthony 1241 

v. Baxter 59, 60, 820 

v. Bell 725, 1252, 1804, 1361, 

1481 

p. Bligbton 196, 203 

v. Brancker 476 

v. Byrnes 828, 921, 933 

v. Crittenden 842 

r. Foy 10S3 

v. Goanage 884 

v. Kelly 1119 

v. Haas. R. R. Co. 1651 

p. McBee 1090, 1092 

v. M'lver 91 7 

v. Savage Placer Mining 

Co. 1603 

v. Scott 1290 

v. The Little Acme 1680 

v. Williams 710, 728 

Parker County v. Sewell 1086 

Parkes, ex parte 1074 

Parkinson v. Manny 1760 

Parks v. Crockett 710 

v. Hall 80C, 806, 836 

Parmelee u. Hambleton 1368 

Parrish's Appeal 1310 

Parrott ti. Sweetland 1071 

Parsley v. David 1594 

Parsons o. Hoyt 1114 

v. Martin 1092 

p.Moses 1181,1142 

Partridge v. Dartmouth College 740 

v. Logan 1060, 10B6, 1088 

Paschal, in re 137, 146 



3igitiz eC by GOOgle 



TABLE OF CASES. 



Reference to Section*. 



Paschal v. Brandon 1127 

Pstapsco, The 1681, 1686, 1690 

Patent Brick Co. v. Moore 1590 

Patrick t>. Hazen 115 

v. Leach 118, 155, 183, 238 
v. Smith 1400, 1421 

Patten's Appeal 857, 861, 862, 864 
Patten t>. Northwestern Lambei 



Co. 



719 



ii. Thompson 465, 


869 


878, 




884 


, 955 


v. Union Pacific Ry 


Co 


292, 
293 


Patterson v. Edward* 




1071 


v. Frasier 




1222 


v. Hawkins 




636 


p. Penn. Reform School 






1375 


p. Seatoo 




792 


v. Taylor 




610 


Pal ti son v. Culton 




960 


Paul r. Bark Hex 




1713 


t>. Hoeft 




14 58 



v. Nample 1209 

Paulding v. Ketty 685 

Paulsen v. Ingersoll 719 

v. Manske 1257, 1504 

Pawaehick, The 1791 

Paxton v. Rich 1120, 1123 

Payne v. Atterbnry 1105 

tt. Avery 1063, 1071 

v. Hathaway 74 

v. Holt 812 

e. Hornby 784 

p. Shadbolt 814, 834 

t>. Spiller 456 

t>. Wilton 34, 77, 96, 991, 

1012, 1218, 1286, 1294, 
1459, 1460, 1543 
Paynter v. James 31S 

Peabody v. Eastern Methodist So- 
ciety 1244 
Peacock v. Hammitt 628 
Peak n. Ellicott 37 
Peake, ex parte 1082 
Pearce v. Foreman 10S2, 1085 
v. The Thomas Newton 1T20 a 
Pearl tt. Robitohek 209 
Pearson o. Dawson 844 
v. Evans 454 
Pearsons v. Tincker 990, 1493, 1494, 
1498 
Pease, ex parte 244 
Pease tr. Kelly 1063, 1080 
Peav v. Feild 105 
Peck it. Bridwell 1482, 1520, 1591, 



Peck tt. Glass 1153 

v. Hensley 1573 

tt. Jenness 10, 13, 38 

v. Standart 1317 

Pedesclanz p. Legarb 1063 

Peebles, m re 388 

Peek e. Larsen 273 

Peat it. Beers 1093 

v. McGraw 499,504 

Pell v. Bain- 1492, 1568 

Pally ■>. Wathen 119, 130 

Pemberton, ex parte' 126 

Pendergast v. Bank of Stockton 377 

Pendleburg o. Meade 1235 

Pendleton v. Franklin 1731 

Pennock v. Hoover 1818, 1368, 1429, 

1470, 1472 

Pennsylvania & Del. R. R. Co. it. 

Leuffcr 1365, 1629, 1665 

Pennsylvania R. B. Co. tt. Am. Oil 

Works Co. 265, 267, 867 

Penny v. Little 613 

Penrose o. Calkins 1422 

Pensacola R. R. Co. tt. Schaffer 1498 
People v. Bank of Danaville 37 

it. Butler . 1876 

v. City Bank of Rochester 37, 
259 
t>. Crockett 375, 380, 383 

it. Hardenbergh 214, 233 

tt. Husband 625 

v. Merchants' & Mechan- 
ics' Bank 57 
v. N. Y. Common Pleas 217 
People's Bank v. Cage 1092 
People's Ferry Co. o. Beers 1722,1724 
People's Sav. Asso, p. Spears 1247, 
1253 
Pepper p. George 1079 
Fepperday's Appeal 1260, 1460, 1491 
Pcqueno v. Taylor 91 1, 912 
Percy p. Millaudon 1147 
Perdue, in re 1082, 1098 
Perez tt. Aleop 319 
Perkins v. Boardman 696 
p. Coleman 1620 
w. Davis 1468 
u.Emory 1172 
>'. Gibson 1092, 1094 
p. Perkins 190, 230, 235 
tt. Pike 710 
v. Swank 1083 
v. U- S. Electric Light 

Co. 1102 

Perrine v. Fireman's Ins. Co. 383, 

401 

Perry p. Board of Missions 39, 93 

lxiv 



3igitiz eC by GOOgle 



TABLE OF CASES. 
Reference to Sections, 



Perry v. Bragg 
v. Cheater 
p. Conroy 
v. Grant 
v. Waggons 



1429 

1063, 1073 
557, 616 
v. Woodson 1090 

Person p. Oberteuffer 84, 67 

p. Wright 542 

Peters p. Clements 1114 

p. Newkirk 571, 593 

p. St. Louia & I. M. R. R. 

Co. 1670 

p. Tunell 1071, 1072 

Petersburg Saving* & Ids. Co. t>. 

Lumsden 396, 401, 414 

Peterson, The, v. The Nellie and 

Ad Die 1706 

Peterson 0. Watson 196, 205 

Petrel, The, p. Dnmont 1729 

Petrie p. Myers 256 

Petry p. Ambrosher 1076 

v. Randolph 619 

Peyroux v. Howard 1002, 1535 

Pharr v. Collins 266 

Phebe, The 1797 

Pheev. Guthrie 1141 

Pholp* v. Comber 61 

v. Coiiover 1098 

v. Curts 1082 

p. Maxwell's Creek G. M. 

Co. 1276, 1279, 1397 

». Mining Co. 1276, 1614 

v. Seely 1178 

v. Sinclair 429 

v. The Camilla 1519 

Phelps- Bigelow Windmill Co. v. 

Baker 1311,1453 

Phelps - Bigelow WindmUl Co. p. 

Shay 1341, 13S2 

Philadelphia ». Greble 1344 

Philadelphia & Reading R. R Co. 

p. Dows 320 

Philbrook 0. Delano 1063 

Philips p. Philips 1165 

Phillips v. Adams 1123 

p. Brown 1205 

u. Freyer 704 

p. Gallant 1599 

p. Germon 175 

p. Gilbert 1318,1317, 1504, 

1511 



v. Maxwell 


636 




1725 


v. Roberta 


1231 


p. Rodie 


270 


r. Sannderson 


1080 


v. Scattergood 


1715 


lxxvi 





Phillips p. Schall 1061 

p. Skinner 1074 

p. Stagg 165, 166 

p. TrezeTant 788, 789 

p. Tose 780 a, 990 

p. Wright 1367, 1728, 1781 

Phoanix Iron Co. ». Hopatcong 1 756 
p. Vessels 1728 

Phcenix Mot Ins. Co. 0. Batohen 

1199, 1465, 1495, 1605 

Pickard p. Yencer 283 

Pickens v. Plattsmou th Investment 



Co. 



1247 



Pickert r. Railroad Co. 1487 

Pickett p.' Bullock 806, 848, 1015 

p. GoUner 1218, 1350 

Pickman v. Woods 322 

Picquet v. M'Kay 276, 1018, 1019 

Pierce p. Gardner 1114 

c Jackson 787 

c. Lawrence 280 

p. Marple 1510. 1606 

p. Milwaukee & St.F. R. R. 

Co. 1674 

v. Moreman 1101 

p. Scott 552, 590 

v. Sweet 731 

Pienon v. David 1063 

p. Safford 185 

Pike p. Greenbaum 817 

v. Scott 1215, 1465 

Pike Co. p. Norrington 1375 

Pitcher's Succession 787 

Pilling p. Armitage 1139 

Pillow v. Helm 1092 

Pilzp. Killingsworth 1348, 1370, 

1555, 1588 

Pinch v. Anthony 30 

Pinchain p. Collard 1063, 1074, 1094 

Finder p. Morris 196, 209 

Pine Saw-Logs p. Sias 713 

Pinkerton p. Le Beau 1554 

0. Woodward 51 1 

Pinkston p. Young 1219, 1290, 1470 
Pinney v. Wells 6, 262, 322, 781, 

1002 
Pinning p. Skipper 1500 a, 1520, 1532 
Pinnock v. Harrison 781 

Pintard p. Goodloe 1061 

Pioneer, The 1677, 1808 

Piper 0. Hoyt 1228 

Pique v. Arendale 1075 

Pirate, The 1691, 1712, 1806 

Pirie p. Harkness 1 75 

Pitkin p. Fletcher 586 

Pitschki e. Anderson 1090 

Pitts p. Parker 1063,1092,1107,1119 



3igitiz eC by GOOgle 



TABLE 07 CASES. 



Reference tn Sections. 



Place u- Hay ward 220 

Planet, The 300 

Planing Mill Co. v. Brundage 1235, 
1262, 1263 
Planter, The 1T25 

Planters* & Merchants' Mat. Ids. 
Co. k. Selio* Saving! Bank 365, 



Planters' Bank v. Dodson 
Piatt v. Birmingham Axle Co. 



386 
1093 
383, 
418 

i: Griffith 1458, 1459 

v. Jerome 195 

v. Piatt 139,1174 

p. The Georgia 1711 

Platteville v. Bell 1315 

Pleisants p. Kortrecht 190, 280 

Plimpton p. Plimpton 1142 

Plowman p. Riddle 1074, 1096 

Hammer d. Eckenrode 1310, 1319 

Plymouth, The 1770 

Plymouth Rock, The 1681, 1682 

Poe B, Paxton 1061, 1069, 1076, 

1079, 1081 
Poerr. Peebles 572,618 

Poenchke t>. Eedenbnrg 1218, 1654 
Poillon p. New York 1375 

Poland p. The Spartan 1701 

Pollock t>. Landia 513,518 

Pomeroy v. Lumber Co. 1235 

Pond Mflch. Tool Co. v. Robin- 
ton 1S35, 1336 
Pool ». Sanford 1226, 1532, 1556 
v. Wedemeyer 1226, 1392, 1418, 
1554, 1571 
Poole p. Eermit 1725, 1729, 1756 
v. Railroad Co. 891, 899, 952 
t. Seney 789 
v. Union Paa». Ry. Co. 1330 
Poole; p. Great Eastern Ry. Co. 843 
Poor v. Oakman 1247 
Pope r. Armstrong 146,158,166,167 
o. Graham 1226, 1382, 1533 
Porter v. Dubuque 1063, 1081, 

p. Hanson 170, 229 

v. Jackson 1163, 1164 

p. Lane 
v. Miles 

t. Pittsburg Steel Co. 1625 a 
p. The Sea Witch 1787 

p. Wilder . 1599 

v. Woodruff 1063 

Partem p. Wntney 274 

Portland Lumbering & Mannf. Co. 

>. School Dist. 1221 

Portones v. Badenoch 1327, 1581, 

1600 



Post v. Campbell 


1218 


1286 


p. Vetter 




1276 


'othonier v. Dawson 




1033 


?otshuisky P. Krempkan 
Potter p. f runt 


1382 
223 


p. Mayo 15 
?ottinger v. Hecksher 


, 162, 193 


, 196 


92 


, 965 


Potts v. Blackwell 




791 


p. N. Y. h N. E. 


B, R. Co. 


267, 


268,291, 320, 90C 


, 901 


Poo v. Covington & M 


R. Co. 


1197 


Pouns v. Gartman 




1098 


Powell, The 




1811 


Powell p. Jones 




43 






1617 


r. State 




603 


p. Weaver 




455 


p. Webber 




1199 


Power i'. Kent 


196, 209 


p. Me Cord 11 


J9, 1327, 1393 a 


Powers v. City of Yonkert 


1299 


p. Florance 




620 


v. Hogau 
v. Hubbell 




1598 




661 


p. Sixty Tons of Marble 


981 


Pratt p. Clark 1061, 


06S, 1067 


1100 


p. Duncan 




1348 


p. Eaton 


999, 1074 


1090 


p. Reed 




1679 


v. Tudor 




1184 


p. Vanwyck 




1100 


Prentiss p. Garland 




1010 


v. Livingston 




115 


Presbyterian Church v 




1329, 




1332 


1378 




Stettler 


1538 



p.Car- 
396, 411 

Prescott v. De Forest 598 

p. Maxwell 1287 

Preston v. Ellington 1092, 1096, 1097 
p. Neale 486, 487 

Prettyman o. Unland 568, 580, 614 
Preusser p. Florence 1298, 1299 

Prewett p. Dobbs 370 

Price, ex parte 228, 229 



■i. Cuttt 



77 



v, Davis 


1122 


o. Jennings 


1239 


p. Kirk 


1367 




1116 


p. Limehouae 


571 


p. M'Callistor 


562 


v. Mar pie 


1523 


v. Palmer 


93 


v. Railroad Co. 


291 


v. Roetzell 


626 


lxivii 





jipismb, Google 



TABLE OF OASES. 



Kef erenoe to Section •. 



Ins. Co. 444 

Prickett v. Sibert 1092 

Pride of America, The 1 798, 1808 
Pride of the Ocean, The 1781a 

Priebatsch V. Baptist Church 1210 

Prime t. Krnhler 1031 

Princeton Bank ». Gibson 628 

Printup v. Barrett 70 

Print! v. Kelley S98 

Proctor v. Jones 808 

v. Nicholson 51 B, 517 

if. Tows 1245, 1248 

Prospect, The 1799,1800 

Provident Inst for Savings v. Jer- 
sey City 102 
Provost v. Wilcox 55V, 1795 
Prutzmao v. Bushong 1297 
Puckett p. Reed 577 
Pnett v. Beard 201 a, 220 
Fugh v. Boyd 181 
v. Holt 1110 
Pulis r. Sanborn 1002 
Pulvern. Harris 187, 193, 196, 206, 
207, 209 
Pullis it. Hoffman 1412 
Purceil v. Lincoln 196, 205 

r. Thomas 572 

Purchase it. Bellows 217 

Purdy it. Bollard 1108 

Purfel 0. Sands 682 

Purtell v. Chicago Bolt Co. 1878,1622, 
1678 
Putnam v. Ritchie 1131, 1132, 113S, 
1135, 1139 

v. Ross 1575 

v. Tennyson 174 



Q. 

Quaack v. Schmid 1200, 1421 

Qnackenbush v. Carson 1421 

Quale d. Moon 1514 

Queen V. Saddlers' Co. 884 

Queen of St. John, The 1082, 1789, 
1808, 1810 
Quickstep, The 1781a 

Quillian it. Central R. R, & 



gCo. 



737 



Quimby r. Durgia 1310, 1534 

t>. Hnzen 104, 723, 725 

v. Sloan 1841, 1548, 1548, 

1614 

Quinby ». Wilmington 1536 

Quincey v. Francis 193, 206, 207 

Ixxviii 



Quinlan v. Russell 


53, 1877 


Quiun v. Allen 


1375 


c Logan 


1226 


v. New York 


1235 


v. The Mayor 


1589 


v. Wallace 


562 


Qui n nan v. Clapp 


189 



Rackley v. Scott 1541 

Radford v. Carwile 1115 

Raeder v. Bensberg 1S67 

Raft of Logs 1719 

Ragsdale V. Estis 594 

Railroad Company v. Baker 1647 

Railway Company v. Cranio 1664 

v. McCoy 1664 

v. McKinley 251 

Raitt v. Mitchell 322, 1002, 1004 

Rakestraw c. Hamilton 1119 

Raleigh, The 1707, 1811, 1812 

Raleigh v. Atkinson 476 

Ramage v. Towles 1086 

Band V, Barrett 557, 558 

v. Grubbs 1507 

d. Parker 1262 

Randall v. Roche 1686, 1721, 1753 

v. Van Wagenen 209 

Randel t>. Brown 23 

Handle if. Boyd 1101 

v. Fuller 215 

Randolph, The 1697 a 

Randolph v. Randolph 146 

Rankin v. Black 1152 

v. Jones 791 

v. Memphis & Cincinnati 

Packet Co. 284, 31S, 

338 

Ransom u. Brown 1107, 1110 

Raason v. Sbeehaa 13S4, 1425, 1426 

v. Van Deventer 792 

Rapid Transit, The 1681,1683,1688, 

1744, 1772, 1773, 1778, 1801 

Rapp v. Spring Valley Gold Co. 1190 

Rara Avis G. & S. M. Co. it. 

Bouscher 1364, 1366 

Rasquin it.' Knickerbocker Stage 

Co. 196, 203, 201, 233 

Ratcliff if. Daniel 562 

Ratcliffe it. Mason 1069 

Rathbun v. Colton 1173 

it. Hayford 1312, 1313, 1815 
Rauh v. Ritchie 600, 613 

Rawlingsv. Hunt 631 

Rawls v. Deshler 946, 947 



3igitiz eC by GOOgk 



TABLE OF OASES. 



; Heforence to Bectloi 



R*j e. Goodman 


1118 


Raymond v. Ewing 


1199, 1571 


o. Palmer 


248 


•.Port 


1216 


u. Tyson 


268, 825 


Rca v. Burt 


620 


Head s. A mid on 


508 


r. Bostick 


1S7 


i, GaSlard 


156, 209 


78 


i'. Joselyo 


202 


r. The Hull of 


New Brig 



Beiding F. Ids. & Trust Co. 

Beading Iron Works 
Beading e. Hopson 147 

Beat is e. Barnes 
Bedfearn v. Sowerbv 
Bedford v. Gibson 
Redhgton r. Frye 

1. Williamson 



606 

121 

1074 

710, 711, 723 

1235, 1245, 

1257 

1665 

21 



Redman r 

Reed's Appeal 
Reed v. Ash 

p. Bartlett 

9. Boyd 1199 

b. Gregory 1101 

c. Insurance Co. 1800 
». Norton 1190, 1405 
b. Pacific Ins. Co. 72,425 

Reeder v. Anderson 485 

p. Nay 1098 

Keese.Jutte 1760 

r. Ludington 1282, 1470, 1487 

Bene r. Bank of Commerce 376, 

388, 393, 414 

r, Borta 1107 

b. Cole 457 

v. Coriew 1226, 1356 

v. Kinkead 1063, 1067 

Beeres. Downs 1126 

b. Elmendorf 1216, 

1289, 1301, 1303, 1408 
ReeTes r. Capper 468 

r. McKenxie 562, 571 

Bcfeld b. Fen-ell 1063, 1066 

Regulator, The 1680, 1681, 1682, 

1688 
Rehrei-B. Zeigler 1404 

Reid v. Bank of Tennessee 1460 

v. Dapper 234 

Reilly v. Hudson 1211, 1335, 1470, 
1478, 1608, 1613 
b. Stephenson 721, 727 

b. Williams 1317, 1458 

Reily r. Miami Exporting Com- 
pany 1031 



Reindollar v. Flickinger 1206, 1389, 
1390, 1397, 1554 
Reinemen v. C. C. & B. R. R. Co. 

308 
Reis, in re S95 

Relfe b. Relfe 1099, 1108 

Renick c. Ludington 192, 217, 231 
Ronton 0. Conley 1287 

Revenue Cotter, The, No. !, 1722 a 
Rex ». Humphrey 977, 978 

Reynes v. l>umont 251 

Reynolds v. Boston & Me. R. R. 

Co. 875, 885, 888, 896, 
928, 929, 940 
f. Case 691 

r. Ellis 543, 544, 547 

p. Jex 273 

b. Morse 1119 

v. Port Jervia Boot & 

Shoe Factory 196 

v. Reynolds 238 

v. Shuler 567 

Rhea v. Reynolds 1108 

Rheola, The 1771 

Rhoades v, Rhoades 1167 

Rhodes v. Mooney 849, 862 

Rice v. Austin 465 

v. Barnard 789, 790 

v. Garnhart 222 

p. Hall 1578, 1592 

v. Hodge 1329 

p. Nantasket Co. 1313, 1316 

v. Rice 1063, 1079 

Rich, The 1681 

Richards v. Bestor 602 

v. Fisber 1108 

b. Gaskitl 422 

v. Learning 1086, 1092 

v. McGrath 682 

r. McPherson 1079, 1086 

v. Reed 1559 

t>. Symons 641 

Richardson, Succession of lOGfl 

Richardson v. Baker 1 100 

i!. Blakemore G36 

v. Bowman 1063, 1069 

B.Brooklyn, C. & N. 

R, R. Co. 287 

v. Goss 940, 941, 944, 



v. Hamlett 
n, Hickman 
i'. Koch 1275, ] 



98(1 
1074 



3igitiz eC by GOOgle 



TABLE OF OASES. 



Reference to Section*. 



Richardson o. Peterson 576 a, 616 

v. Reid 1235 

v. Rich 286 

v. Ridgely 1086 

v. Rust 43 

v. Stillinger 1100 

Richey v. Du Pre 488 

Richie v. McCauley 63S 

Richmond v. Duesberry 655, 639 

Ricker v. Joy 1430 

Ricks v. Redwine 781 

Riddle ■>. Welden 564 

Riddler o. Varnum 836 

Rider t. Clark 3! 

Ridgely v. Iglehart 8, 4, 21, 93, 11T4 

Ridge way i>. Kennedy 820 

v. Tornra 1100 

Riggs v. Whitney 691 

Riley v. Watson 1218 

Rindge «. Oliphint 1099 

Ringgold v. Bryan 1076 

Ripley v. Gage Co. 1875 

Kipper don v. Cosine 1092 

Kitten e. Union Pacific Ry. Co. 90 

Rittere. Stevenson 1184, 1190, 

1499 

Ri vara v. Ghio 968 

Rivers o. Mulholland 1 210 

Roach tr, Uhapin 1199, 1258 

v. Chapman 1722, 1724, 1725 

Roanoke Land & Improvement 

Co. i>. Earn 1229 
Rob Roy, The 1702 
Robb v. Mudge 791 
v. Wagner 620 
Bobbins v. Blevius 1207, 1286 
Robert v. Jacks 1494 
Robert Gaskin, The 1799 
Robert J. Mercer, The 1712 
Roberta v. Austin 57 
v. Buee 216 
v. Campbell 1588 
c. Doty 198 
v. Fowler 1493, 1496 
v. Francis 1109 
v. Gates 1568 
v. Jacks S, 541,642,547, 
606, 982 
v. McCarty 798 
v. Miller 1208 
v. Nelson 169 
v. Riggs 1382 
v. The Bark Winder- 
mere 1713, 1714 
v. Wilcoxson 1013, 1014, 

1621 

Robertson v. Gaerin 1092, 1098 
lm 



Robertson t>. Shutt 1 77, 219, 230 

Robey v. Oilier 61 

Robilant, The 1798 

Robins v. Bnnn 1184, 1578, 1586 

Robinson v. Appleton 1063, 1114, 

1116 
p. Baker 262, 291,804, 

305 
1101 
1128 
1119 



'. Black 
. DU 



v. Harbour 

e. Holt 603 

v. Lehman 603, 1046 

v. McWhirter 1087 

o. Ridley 1136 

v Springfield Iron Co. 1031 

t>. Staples 620 

v. State Ins. Co. 1289 

v. Walter 499 

v. Ward 1142 

v. Williams 1081 

v. Wilson 1382 

Robson v. Kemp 433 

Rock Island Bridge, The 1770 

Rockefeller tf. Thompson 1734 

Rockwood <>. Walcott 1299, 1668 

Rod bourn v. Seneca Lake Grape 

8c Wine Co. 1218, 1299 

Rodger v. The Comptoir d'Es- 

compte de Paris 917, 921, 949 

Rodgers tt. Parse 233 

v. Grothe S85, 988, 1033 

Rodick v. Gandell 50 

Rodman ■>. Sanders 1093 

Roecliff, The 1769 

Roger t>. Thomas 885 

Rogers v. Blum 1109, 1116 

V. Currier 105, 1327,1328, 

17! 7, 1748 

v. Heath 228 

v. Hosack 48 

v. Huntington Bank 879, 393, 

S95, 402 

B.James 1092,1119 

v. Phillips 1261 

v. Powell 1199 

v. Thomas 861, 885, 887 

v. Tucker 1080 

v. Walker 782 

v. Whitehouse 820 

Roget r. Merritt 803 

Roland v. Centerville, Moravia 

& Albia Ry. Co. 1289, 1290 

Rollin tt. Cross 1244, 1245, 1247, 

1251, 1257, 1259, 1493, 1494, 

1495 

Rollins v. Forbes 1669 



3igitiz eC by GOOgk 



TABLE OF GASES. 



Rolling v. Proctor 585, 393 

Roman v. Thorn 1571, 1S72 

Ronald p. Mat. Reserve Fond 

Life Asso. 154, 200 

Rood v. McCargar 103 

Rooney v. Second Ar. R. R. Co. 

184, 187, 188, 193 

Roop o. Herron 787 

Boose c. Billingsly 1424 

v. McDonald 173S 

Root v. Bryant 1460 

Roper v. Day 1119 

0. McCook 1092, 1100, 1119 

Rove v. Gray 577 

v. Hart 732 

p. Munie 1460 

f. Paper Works 1338, 1537, 

1S78 

v. Watson 1105, 1106 

Rosenback p. Salt Springs Nat. 

Bank 377, 384 

Rosenberg v. Sbaper 559, 638 

Rosenberger v. Hallowetl 632 

Roaen&eld d. Express Co. 895 

Roaenkranz p. Wagner 1287, 1594 

Rosenstein v. Forester 311 

Rosenthal v. Dessau 952 

v. Maryland Brick Co. 

1206, 1458, 1470 
v. The Die Garten- 

taube 1694 

Rosette v. Wynn 1083 

Rosevear China Clay Co. ex parte 

902, 909, 912 

Roionborough v. Rutland 1163 

Rosa i. Adams 1068 

v. Heintzen 1092 

v. Irving 1144, 1145 

v. Lao gE ton 122 a 

v. Simon 1276, 1397 

v. Swan 1110 

■>. WhitsoD 1063 

Rosse p. Bramsteed 518 

Rossi r. MaeKellw 1254 

Rotch if. Hussey 1074 

Roih i>. Williams 556, 606 

Kot.be i>. Belliugrath 1272, 1273, 

1274, 1276, 1280, 1490 

Rotherey v. Wood G90 

Rotbgerber v. Dupuv 1199, 1283, 

1554, 1644 

Botiler v. Rotzler 601 

Ronndsll v. Breary 78 

Rouse o. Woolen 4S7, 631, 784 

Hover, The, p. Stiles 1735 

Row if. Dawson 43 

Roweo. Fogle 177,208 

vol. t, / 



Howe v. Pickford 904, 917, 921, 940, 

941 

Rowell v. Klein 1262 

Rowland d. Day 1091 

v. Hewitt 3B2 

e. Railroad Co. 280 

Rowley ■>. Bigelow 857, 861, 910 

if. James 1199 

Royal Arch, The 1801 

Royal George, The 1722 

Roylance v. San Louis Hotel Co. 

1480 

K. S. Carter, The 1781 a 

Ruck v. Hatfield 909, 916 

Rucker v. Donovan 262, 277, 861, 887, 

888, 894, 900, 965 

Rudd t>. Ford 619 

v. Peters 1262 

Rude c, Mitchell 1416, 1417, 1418 

Ruff v. Jarrett 1699 

Ruffin, ex parte 788, 791 

Ruggp. Hoover 1392, 1397 

Haggles if. Blank 1249, 1360, 1603 

v. Bucknor 327 

v. Walker 731, 983, 986, 989, 

1008 

Ruhlf. Buhl 1111 

Rumrill p. Huntington 217, 219, 222 

Rush it. Able 1367, 1407, 1441 

t>. Fisher 1257 

v. Henley 638 

b. Perot 1282 

Rushforth v. Hadfield 14, 19, 262* 265, 

731, 732 

Russ Lumber Co. o. Garretlson, 1190, 

1588, 1594, 1614 

Russell t. Bell 1416, 1585 

ti. Conway 160 

v. Doty 571 

r. H&dduck 257, 260 

d. Hayden 1421 

p. McCormick 1066 

p. Painter 751 a 

v. Somervllle 189, 228 

v. Todd 1100 

». Watt 1084, 1094 

Rutherfoord it. Cincinnati & P. 

It E. Co. 1618 

Rutherford v. Railroad Co. 1664 

Rutland v. Brister 1094 

Rutlega v. Walton 686 

Ryan p. Kelly 1211 

v. Klock 1218, 1407 

Ryberg v. Snell 946 

Ryerson v. Quackenbush 628 

Ryhiner it. Frank 1086 

Ry man's Appeal 1444 

lxxxi 



;y Google 



TABLE OF CASES. 



Reference to Section*. 



Saats, ex parte 150 

Safibrd v. McDonough 805 

Sage v. Gittner 070 

u. Wilkinson 146 

Saginaw, The 1697 

Sagmeister v. Fobs 1307 

Saint i'. Smith 641, 612 

St. Clair Coal Co. r. Martz 1367 

St. Croix Lumber Co. v. Mitchell 1558 
St. Germans v. Crystal Palace Ry. 

Co. 1674 

St. Jago de Cuba, The 1519, 1680, 

1682, 1685, 1688, 1785 

St. John v. Diefendorf 115, 119, 141, 

165, 166, 209, 213, 231 

v. Hall 1494, 1499 

St. Joseph, The 744, 1773, 1794 

St. Joze Indians, in re 884, 903 

St. Lawrence, The 1722,1725,1729, 

1788,1799, 1808 

St. Louia v. The Ferry Cn. 1681 

St. Louis, A. & T. N. R. R. Co. v. 

Cleveland, C. 8c C. Ry. Co. 1625 a 
St. Louia, A. & T. Ry. Co. v. Mat- 
thews 1668 
St. Louis & San Prancisco Ry. Co. 

c. Bennett 211 

St. Louis Bolt & Iron Co. n. Dona- 
hoe 1655 
St. Louis Bridge & Construction 

Co. d. M.C.&N.W. R. R.Co. 1619 
St. Louis Nat. Stock Yards c 
O'Reilly 1199, 128G, 1287, 1317, 
1447, 1589 
St. Louie Perpetual Ins. Co. o. 

Goodfellow 371, S91, 393, 398 

St. Louis, W. & W. Ry. Co. v. 



Hitz 



1647 



St. Panl Labor Exchange Co. 

Eden 1323, 1542 

St. Paul & M. Pressed Brick Co. 

v. Stout 1141 

St, Paul Roller-Mill Co. v. Dis- 



V. Huffman . 1063 

Salomons v. Nissen 946 

Salte v. Field 865 

SaltusD. Everett 304, 335, 1019 

Salvo p. Schmidt 600 

Sam ply v. Watson 1083 

Sampson v. Buffalo, N. Y. & Pbil. 

R. Co. 1662 

Samuel J. Christian, The 1776, 1781, 
1781 0,1182, 1786 
lxxsii 



Samuel Marshall, The 1680, 1683, 

1691, 1725, 1731 
Samuel Ober, The 1700, 1704 

San Diego Lumber Co. v. Wool- 

dridge 1190 

San Jacinto, The 1797 

San Juan St St. Louis M. & S. Co. 

v. Finch 1191, 1659, 1660, 1570 

Sanarens t>, True 630 

Sanders v. Gillett 217, 220 

v. Keber 820 

v. Me A flee 1086,1090 

u. Ohlhausen 626 

v. Seelye 115, 119, 161 

Sanderson a. Bell 125 

v. Taft 1242 

Sands f. Champlio 1163 

v. Sands 726, 1024 

Sandval v. Ford 1287, 1289, 1646 

Sanford e. Frost 1444 

Sanger it. Upton 84 

Santa Anna, The 1706 a 

Santa Clara Valley Mill Co. ». 

Williams 1446, 1614 

Sarah Cullen, The 1691 

Sarah E. Kennedy, The 1703, 1704 
Sarah Harris, The 1688 

Sarah J. Weed, The 1681, 1687, 1707, 

Sarah Jane, The 205, 1700 

Sarah Starr, Tbe 1681 

Sarcbet v. Tbe Davis 1688 

Sargent v. Franklin Ins. Co. 375, 391 

v. Glle 820 

u. Usher 691 

Series it. Shadow 1455 

Sassman v. Brisbane 632 

Saulsbury v. Eason 455, 708 

v. McKellar 584, 611 

Saunders v. Leslie 1090 

v. Reilly 787, 788, 789, 792, 

795 

Savage t>. Hazard 1108 

Savannah & Charleston R. R. Co. 

v. Callahan 781 

Savannah, G. & N. Ala. B. R. Co. 

v. Grant 1197, 1642 

Saville v. Campion 271, 323 

Savings Bank v. Creswell 738 

Sawyer v. Fisher 816 

i: Hoag ' 84 

v. Joslin 945 

Scaife v. Stovall G76 a, 578, 603 

Scales v. Griffin 1245, 1247, 1248 

v. Paine 1264 

Scanlan v. Cobb 1580 

Scannell v. Beauvaii 800 



3igitiz eC by GOOgk 



TABLE OF CASES. 



Reference to Section*. 



Scarfe ■>. Morgan 334, 641, 643, 644, 
645, 731, 742, 743 a, 1021, 
1025, 1032, 10S5 
Schaeffer v. Fitbinn 798 

Scbaettler v. Gardiner 1618 

Schallert- Ganahl Lumber Co. r. 

Sheldon 1480 

Sebanck v. Arrowsmith 1063, 1171, 
1173 
Schaper v. Bibb 1341, 1343, 1387 

Scharlock v. Oland 158 

Schearff b. Dodge 1108 

Scbeid v. Rapp 1289 a, 1900 

Scheock v. Liber 1322 

v. Vanoeat 628 

Scheoley'a Appeal 1274 

Scberrer v. Mnsic Hall Co. 1311, 1584 
Scbmalz v. Head 1246, 1252, 1262 
Schnieiding d. Ewlng 1597, 1613 

Schmertz v. Dwyer 46B, 886 

Scbmidlapp e. Carrie 789, T92, 794 
Schmidt, ex parte I860 

Schmidt p. Blood 974 

v. GiUoo 1582, 1608 

v. Hennepin Conoty Bar- 
rel Co. 392, 898 
Sehmittn. Wright 1267 
Schmittler n, Simon 1243 
Sohnebly v. Ragan 1064, 1095 
Schneider «. Evan a 294, 296 
v. Hobein 1286, 1287 
v. Kokhoff 1200, 1404, 
1S34 



Scholia ». Hughes 1421 

Scbolficld a. Bell 865 

Schollv. Gerhab 1222 

School District e. Conrad 1375 

v. Howell 1417 

Sctaoole v. Noble 156, 216 

Schooner Mary Ann Guest 898, 

946 
Sc ho taming v. Lancashire & York- 
shire Rj. Co. 861, 911, 912 
Scbriffer r. Sawn 1222, 1262 
Schroeder v. Gal land 1222, 1289, 
1289 a, 1302 
v. Mueller 1313, 1394, 
1408, 1416 
Schoewler v. Gains 454 
Schnkraft p. Ruck 1538 
Schulenberg v. Prairie Home In- 
stitute 1328 
Schnlenberg Lumber Co. b. Strim- 

ple 1412, 1481 

Seoul 



Scliulenburg v. Hawley 



Schulenburg r. Memphis, C. 8c 

N. W. R. R. Co. 1618 

t>. Robison 1323, 1526 

v. Vrooman 1313, 1821, 

1448 

v. Werner 1211, 1404 

Schultz n. Asay 1313, 1318 

v. Brewing Co. 1248, 1443, 

1470, 1554 

b. Hay 1299 

Schuyler v. Hay ward 1247 

v. Leggett 571, 598 

Schwabacher v. Kane 887, 965 

Schwartz v. Allen 1343 

v. Knigbt 1190, 128S, 1430, 

1438 

v. Saunders 1264, 1487, 

153» 

v. Schwartz 143, 208 

Schwarz v. Stein 1074, 1086, 1116 

Sck>, The 744 

Scoggin, inre 179,180 

Scotia, The 1713, 1790 

Scott t>. Cook 1448 

o. Crawford 1100 

r. Delahunt 8, 744, 1793 

i'. Franklin 241, 244 

o. Goldlnghorst 1309 b, 1423, 

1573, 1588 

b. Griggs 1106 

b. Guernsey 1155 

r. Jester 967 

v. McEwen 569 

v. McMillan 30 

v, Mann 1092 

v. Nesbitt 1147 

v. OrbtsoD 1075, 1504 

v. Pettit 882, 904, 921, 940, 

941, 944 

u. Porcher 46 

F. Pound 611 

v. Stebbins 1164 

v. Ward 1532 

Scroggins v. Hoadley 1108 

Scruggs v. Gibson 611 

Scndder d. Harden 1216, 1554 

Scull's Appeal 790 

Seull v. Sbakespear 1722 

Sea Witch, The 1726 

Seabrook v. Swarthmore College 1222 

Sears v. Smith 854, 1071, 1086 

tr. Wills 318, 997 

Sease v. Dobson 458 

Seaton ». Chamberlain 1202, 1428, 

1430 

t>. Hixon 1202,1421, 1430, 

1565 

lzxxiii 



3igitiz eC by GOOgk 



Reference to Seetiomi. 



Seattle & Walla Walla R. K. Co. 

v. Ah Eow 1!30 

Secomb a. Nutt 884, 885, 919, 921, 
960, 962 
Second Nat. Bank v. Nat. Stale 

Bank 384 

Second Nit. Bank v. Walbridge 825 
Secret, The 1686, 1691 

Secriet v. Delaware Co. 1375 

Sedam v. Williams 791 

Seebaum v. Hand/ 641, 699 

Seeligson v. Mitcham 1086 

Sehorn v. McWhirter 1108, 1116 

Seibel v. Simeon 1547 

-Seibs v. Enelehardt 1187, 1685 

Seippelo. Blake 1743 a 

Seitj: n. Union Pacific Kv. Co. 1109, 
1257 
Selah, The 1792 

Selby o. Hurd 1026 

v. Stanley 1063 

Seidell v. Meeks 1190, 1406, 1410, 

1420 
Selina,The 1787 

Selph v. Howland 1261 

Seminole, The 1800 

Senator, The 1713 

Senior v. Brebnor 1199 

Sense. Trentune 1226 

Sensenbrenner v. Mathews 997 

Senter v, Lambeth 1061, 1063, 1064, 
1081 
Serapis, The 1798 

Sergeant v. Denby 1313 

Servis v. Beatty 1107 

Sevier v. Shaw 575 

Sewall v. Duplessis 1272 

v. The Hull of a New Ship 

1746, 1748 

v. Lancaster Bank 379, 393, 

409, 411 

Sexton v. Alberti 1261 

v. Pike 212, 226 

n. Weaver 1308, 1415, 1420, 

1569 

a Faffs K. R. Co. 77 
v. Hoadley 470 

v. Newton 841, 913, 937, 
960, 965 
v. Slide & Spur Gold 

Mines 1064, 1090 

S. G. Owens, The 1713 

Shackleford v. Beck 1339, 1417 

Shacklettv. Polk 1261 

Shaffer v. Weed 1382 

Sbafere. Archbold 1286 

lxxxiv 



Shiifer v. Guest 

v. Hague 

Shall e. Biscoe 



1063,1083, 1092, 



Shantokin Valley & Pottsville K. 

R. Co. v. Malone 1665 

Shank v. Shoemaker 193, 196 

Shanks v. Klein 796, 799 

Shannon o. Shultz 1269 

Shapendocia v. Spencer 7J« 

Shapley v. Bellows 155, 166, 220 

Sharlock v. Oland 189 a 

Sharon Town Co. c. Morris 1406, 
1453 



Sharp it. Collins 


1030 


P.Ely 


1019 


v. Fields 


230, 63K 


v. Whipple 423, 466, 469 


Sharpe v. Allen 


230 


v. Clifford 


12fii 


Sbarpley o. Railroad Co. 


us; 


Shattell v. Woodward 


isr.i 


Shattuckf. Beardsley 1192 


1S9S, 1423 


Shaver v. Murdock 


1289, 1512 


v. Western Union 


Tele- 


graph Co. 


Si 


Shaw v. Allen 


1592 


v. Bradley 


m 
704 




1219 


I'. GcXn " 


419, 479 


1789 




2*9 


li. Stewart 


1288, 1438 


v. Tompson 


1207, 1113 


Sheble v. Curdt 


m 


Sheer v. Cummipgs 
Sheffield v. Loeffler 


12J.5 


1239 


Shelbourne, The 


1703 


Shelby v. Perrin 


I (ISO 


Sheldon v. Parker 


1756 


v. Smith 


1459 


Shellabarger it. Thayer 


1202, 1304 


Shelton v. Jones 


1107, 1119 


Shenandoah Valley R. R. 


Co. t. 


Griffith 


397 


Shenandoah Valley R. R. 


Co. w. 


Miller 


1223 


Shepard v. Briggs 

v. Rice 
Shepard son v. Johnson 


H7 


1201,1462 


Sheppard v. Newball 940, 949, 953, 


v. Steele 1724, 


1729,1733, 




1756 


r. Taylor 


1701 


v. Thomas 


991, 1119 



jipismb, Google 



TABLE Or CASES. 
HeOforeaco to Sections. 



SbersU e. Nicodemm 
Sheridan v. Ireland 
Sherman v. Dutch 



960 



Sherry >. Schraage 
Sherwood v. Seaman 1276 

Shetsline ». Keemle 588 

SfakUe, &c. Iron Co. t>. Council 

Bluffs Water Works Co. 1530 

Shields tf. Dodge 644 

t>. Keys 1578, 1586 

v. Kimbrough 603 

Shilling n. Templeton 1262, 13S0 

Shimi if. Fredericks 1119 

i'. Taylor 1109 

Ship r. The Anna. Kimball 1010 

Ship Norway, The 1722 

Shippen v. Paul 1487 

Shireman v. Jackaon 820 

Shirley v. Shirley 1105 

it. Sugar Refinery 106G, 1082 

Shirts v. Irons 217 

Shoecraft c. Bailey Sll 

Shoener v. Cabeen 467 

Short b. Ames 1309 a, 1421, 142! 

v. Battle 1079 

a. Miller 13090,1330 
Shorter ». Frazer 1064, 1084, 1099 
Shrirer p. Birchall 1SS0 
Shropshire p. Duncan 1500 

f. Lyle 1074 

Shney v. United States 492, 495 

Shnffleton v. Hill 706 

Shumate tt. Harbin 1143 

Sibley r. Casey 1261 

p. County of Fine 226, 992 

Sidlinger f. Kerfcow 1190, 1600 

Sidney L. Wright, The 1690 

Siffken e. Wray 866, 874 

Sijemm r. Kahmann 807 

Staler r. Knox Co. Bank 788, 793 

SUM r. Page 1129 

Silliman p. Short 620 

Silvester p. Coe Quartz M. Co. 1190, 

1328, 1368, 14S4, 1454 

Simmons t>. Almy 115, 155, 162, 

196 

p. Carrier 1310, 1328, 1404 

v. Fielder 608 

v. Swift 836 

Simon p. Blocks 1199, 1536 

p. Brawn 1093 

b. Goldenberg 620 
Simonda v. Bnford 1200, 1586 
Simonsen v. Stachlewict 1293 
Simpson v. Hartopp 563 

p. H in son 603 



Simpson v. Lamb 215 

v. Mnndee 1063 

Sims v. Bradford 645, 693 

p. Nat Commercial Bank 1064, 

1101 

p. Sampey 1070, 1098 

Sinclair p. Fitch 1543, 1614 

v. Sinclair 1157, 1178 

Singer Manuf. Co. v. Sammons 855 

Singerly v. Doerr 1324, 1329, 1435 

Sinnickaon v. Lynch 1574 

Sinton o. Steamboat Roberta 1499, 

1722, 1724, 1725,1798,1800, 

1808 

Siren, The 279 

Sirocco, The 1704,1705 

Siron v. Ruleman 1163 

Siston p. Holcomb 12S9 

Sits v. Deihl 1109 

Skaggs b. Hill 1 77, 203, 230 

v. Nelson 109J, 1119 

Skeloe v. Ellis 576 

Skillin v. Moore 1247 

Skillinger, The 1009 

Skinner v. Purnell 1088 

p. Sweet 223 

v. TJpthaw 262 

Skipwith p. 499 

Skolfield rj. Potter 1704 

Skrainka p. Rohan 1618 

Skynne r. Occidental M. & M. 

Co. 1441, 1494, 1495, 1499, 1532, 

1556, 1558 

Slaughter v. Owena 1090, 1098, 1099 

p. Winfrey 631 

Sleeper p. Parrish 569, 632 

Slett v. Collins 1099 

Slight v. Fatten 1404 

Sloan v. Campbell 1092 

Slocum p. Clark 577 

Slubey v. Heyward 836, 837, 962 

Sly b. Pattee 1216, 1285, 1243, 1469, 

1468 

Small u. Moatei 272 

p. Small 1105 

. A 

Bmallhouse p. Kentucky, Jtc. M. 

Co. 1363, 1629 

Smaltz b. Hagy 1437 

Smart p. Bandars 476 

Smelting Co. p. Pleas 171 

Smiley n. Jones 1173 

Smith p. Atkins C48 

v. Baily 1218, 1548 

v. Barnes 1235, 1246 

v. Baum 189, 233 

3 ixxv 



3igitiz eC by GOOgk 



TABLE OF CASES. 



Reference to Section!. 



Smith t>. Bloia 620 

t>. Bobb 600 

ij. Bowles 868 

p. BrocVlesby 216 

v. Bryan 108 

p. Central Trust Co. 184, 187, 
202 

p. Coe 1242, 1287, 1290, 18S0 

v. Co I cord 514 

v. Colson 572 

p. Corey 1608 

v. Dearlove COS, 504 

v. Dennie 814 

o. Drake 1136 

n. Etoerfou 1207 

r. Evans 796 

p. Field 86B, 867 

p. Fyler 572 

p. Goodwin 589 

v. Goss 921, 936, 965 

p. Greenup 21 

v. Hague 1129 

v. Headley 1369 

v. High 106S, 1110 

p. Hudson 921, 944 

v. Iowa City Loan and 

Building Asm. 1287, 1289 

p. Johnson 12GS, 1393, 1532 

v. Jones 625, 796 

p. Kennedy 1185, 1348, 1349 

v. Keyes 506, 518 

p. Lowden 21 7 

p. Loio 820 

p. Lumber Co. 576a 

p. Lyrics 815 

v. Maiden 670 

v. Meanor 588 

t>. Merriam 1287, 1290, 1298 

p. Meyer 556, 576 a 

p. Moore 1108, 1199, 1257 

p. Morris 1254 

v. Norris 1252, 1413, 1415 

p. Price 1108 

v. Railroad Co. 175 

p. Rowland 1063, 1107, 1124 

p. Scott 997, 999 

v. Shaffer 
p. Shell Lake Lumber Co. 1048 
p. Sheriff 572 

v. Sherman Min. Co. 1212,1404 



665, G 



1095 
v. Stevens 
v. Sturgis 
p. Taber 543, 548 

o. Turner 1127 

lxxxvi 



Smith p. Vaughan 1071 

p. Wells 585, 998 

p. Toun^ 161 

Smith Bridge Co. v. Bowman 1618, 

1664 

p. Louisville, 

&cRy.Co.H99 
Smoot p. Strauss 610 

Smoyer v. Roth 56! 

Smullen p. Hall 1543 

Soead p. Watkins 499, 500 

Snee v. Baxter 663 

0. Prescott 858, 68! 

Snell p. Mohan 1559 

Snively's Appeal 1158 

Snodgrass p. Holland 1511, 1585 

Snook p. Davidson 423 

Snyder p. Hitt 555, 570 

d. Kunkleman 585 

Socie'te" Gluerale de Paris v. 

Tramways Union Co. 389 

Society for the Propagation of the 

Gospel v. Wheeler 1145 

Sodergren p. Flight 820, 321 

Sodini v. Winter 1206, 1235, 1304, 
1327, 1500, 1532 
Sohier p. Eldredge 1160 

Solis, The 1699 

Somes v. British Empire Ship- 
ping Co. 281, 804, 97:1 
Sontag p. Brennan 1518, 1539 
d. Dcerge 1441 
Souder, Emily, The 1688 
Souders v. Van Sickle 557 
Soule p. Dawes 1248, 1445, 1461 
v. Hurlbut 1458 
South, ex pane 43, 45 
Southern Cal. Lumber Co. p. 

Schmitt 1190, 1614 

Southwest R- R. Co. e. Bently 269 
Southwestern Freight & Cotton 

Express Co. p. Plant 807 

Southwestern Freight & Cotton 

Press Co. p. Stanard 800, 803, 807 
Southwlck, in rt 229 

Sowle p. Holdridge 1127 

Spafford p. Dodge 1769 

s. True 710, 729, 1021 

Spalding v. Chelmsford 1142 

p. Kuding 953 

Sparks ». Butte Co. Grav. M. Co. 

1190, 1283 

p. Hess 106S, 1107, 1124 

p. Texas Loan Co. 1067 

Spartali p. Benecke B50, 851 

Spauldiiig, The 1781fl 

Spaulding p. Adams 998 



3igitiz eC by GOOgle 



TABLE OF CASES. 



Reference to Section*. 



Spaulding v. Thompson Ecclesi- 
astical Soc. 1192,1287, 
1291, 1827 
Spear b. T rarer* 826 

Spear* B. Hartlj 452, 978 

Speer v. Hart 455 

Spence v. Griswold 1585 

Spencer's Appeal 147, 148 

Spencer p. Clinefelter 632 

v. Doherty 1223, 1588, 1S91 
[■. M'Gowen 562 

Spinning v. Blackburn 1262, 1263 

Spokane Manuf. K Lumber Co. v. 
AlcChemey 1230, 1235, 1304a, 

1564 
Spoor ». Holland 1036 

Sprague tr. Drew 1079 

v. Green 1614 

Spring p. S. C. In*. Co. 469 

Sproessig p. Kentel ISIS a 

Sproule p. McNulty 965 

Spruhen t. Stout 1232, 1334, 1559 
Spruill o. Arlington 457, 631 

Spry Lumber Co. e. Trust Co. 1235 
Spurgeon t>. McElwain 1381 

Spurbck c. Pacific H. R. Co. 377 

Squire* c. Abbojt 1733, 1756 

v. Fithian 1436 

Stabler b. Spencer 1070, 1092 

Stacj v. Bryant 719 

Stafford e. Van Rensselaer 1063, 1080 
SLagg u. Small 1092 

Stagner tr. Woodward 1512 

Stallman v. Kimberly 967, 981 

Stamp* p. Gilman 551, 562, 625 

Standard Oil Co. p. Lane 1335 

Stanford p. Andrews 230 

Stanhope r. Dodge 1110 

Stansell v. Robert* 1092 

Stanton v. Eager 884, 861, 948 

tr. Embrey 44 

Stan wood. The 1781 a, 1787 

Staples v. Bradley 335 

Stapp, The, r. The Clyde 1725, 1731, 

1750 
Stark p. Starr 1133, 1134, 1146 

State b. Adam* 546 

P. Anderson 1674 

e. Copeland 631 

p. Ead* 1201, 1570 

b. Edgefield & Ky. R. R. Co. 

231 
ir. Goll 746 

p. Pendor 631 

r. Recorder of Mortgage* 1286 
v. Beeder 635 



608 

p. Webb 631 

State Bank p. Armstrong 241 

p. Lowe 668, 691 

Stale Sash Manuf. Co. v. Norwe- 
gian Seminary 1435, 1441 
Steamboat Charlotte v. Hammond 1532 
Steamboat Rover p. Stile* 1 735 
Steamboat Thompson v. Lewis 110 
Steamboat Virginia r. Knott 801 
Steamer Gazelle t>. Well* Lake 1558 
Steamship Co. ». Joliffe 1558 
Steamship Dock Co. v. Heron 375, 
377, 381 
Stebbins v. Phmoix Fire Ins. Co. 376, 
377, 379,386,391,397 
Steele t>. Steele 1164 
Steenbergen o. Gowdy 1307, 1382 
Sieger p. Arctic Refrigerating Co. 

1344 

Steigleman b. McBride 1257, 1312, 

1539, 1610 

Stein i nger o. Raeman 1462 a 

Steinkamper u. McManu* 1211,1328, 

1574, 1615 

Steinkemcyer v. Gillespie 1119 

Steinman p. Henderson 1262 

tr. Wilkin* 6,320,418,643, 

T31, 739, 967, 974, 9J7 

Steinmetz n. St. Paul Trust Co. 1562 

Stelzertr. La Rose 1100 

Stephen's Appeal 1063 

Stephen v. Coster 980 

Stephens u. Adams 585 

b. Anthony 1119 

p. Farrar 177 

o. Greene Co. Iron Co. 

1116 
v. Holmes 1355, 1554 

p. Motl 1110 

v. Shannon 1063, 1083, 1084, 
1099 
p. Weston 166,215 

Stephenson b. The Francis 1679, 1680, 
1682, 1683, 1685, 1688, 
1689, 1690, 1691 
r. Haines S49 

Sterling, ex pane 123, 126, 131 

Stern p. Simpson 603 

Stetson & P. Mill Co. b. McDon- 
ald 1330, 1452 
Stevens v. Boston at W. R. R. Co. 

304, 305 

tr. Campbell 1578 

p. Cbadwick 1107, 1119 

p. Hurt nun 

lxxxTii 



3igitiz eC by GOOgk 



TABLE OF OASES. 



Reference to Section*. 



Stevens v. Lincoln 1246, ISIS, 1316, 
1373 
o. Lodge 562 

v. Ogden 1294, 1301 

v. Rainwater 1086, 1090 

v. Robbing 449 

v. 'Watson 96 

t>. Wheeler 919, 93S 

Steveoson v. Blakelock 6, 115, 119, 
128 
p. Crapnell 1066 

v. Maxwell 1127 

v. Stonehill 1240, 1362, 

1479 
Stewart v. Caldwell 1100 

r. Christy 1204 

v. Flowers 91, 115, 137, 158, 
181, 229 
v. Gogoraa 1450 

v. Hilton 224 

v. Hopkins 52 

v. McCready S16 

v. M'Quaide 1307 

v. Smiley 1174 

u. Wood 1105 

p. Wright 1287. 1289 

Stewart Chute Lumber Co. v. Mis- 
souri Pac. Lumber Co. 1827, 1329, 
1657 
Stewartton p. Watts 1114 

Stickney p. Allen 748, 997, 1007 

Stillinga f. Gibson 747 

Stine v. Austin 1436 

Stinton p. Steamboat Roberta 1534 
Stockton Malleable Iron Co. fn re 393 
Stockwell v. Campbell 1343 

p. Carpenter 1201, 1235, 

1236, 1248, 1257, 1325, 
1462 
Stoddard v. Benton 222 

Stoddard Woollen Manufac. v. 

Huntley 1002 

Stoke v. McCulloogh 1222 

Stokes's Case 158 

Stokes v. La Riviere 91 7, 922 

Stollenwerck w. Thacher 419 

Stonard v. Dunkio 828, 845 

Stone p. Bohm 577, 619 

v. Hyde 155, 2S1, 232 

v. Smith 1218 

Stone Land Co. v. Boon 1116 

Stoner'i Appeal 1222 

Stoner v. Neil 1458 

Storm v. Green 625 

Storms v. Smith 691 a, 971 

Stornoway, The 278 

Story p. Buffum 1748 

Ixxxviii 



Story v. Floumoy 

v. Russell 
Stott v. Scott 
Stoat n. Golden 

p. McLachlin 



1705 
690 



1231, 12S9 
1238, 1283 
1336,1728 
b. Sower 1199,1371,1465, 

1536 
Stoveld p. Hagb.es 842 

StovelU. Neal 1190 

Stow p. Hamlin 187 

Straeder p. Cogswell 1421 

Strahorn p. Union Stock Yards 

& Transit Co. 460 

Strathmore p. Vane 252 

Stratton p. Gold 1092, 1110, 1114, 

1119 

v. Hassey 168, 166, 201 a, 

214, 220 

p. Shanbar 1205, 1391 

Strauss's Appeal 1114 

Strauss v. Baley 625 

Strawick v. Munhall 1222 

Strawn v. O'Hara 1199 

Streeper p. MeKee 1547 

Streuoel p. Milwaukee & Miss. R. 

R. Co. 109, 1558 

Strickland p. Summerrille 1116 

Stricklin v. Cooper 1114 

Stringer, ex parte 394 

StrlngfelW p. Ivie 1064, 1072 

Strohecker v. Irvine 230 

Strohra v. Good 1076 

Stroma, The 1690 

Strong p. Taylor 820 

p. Van Deursen 1248, 1252, 
1458, 1499 
Stroud p. Pace 1083 

Stryker v. Cassldy 725, 1965. 1367 
Stuart p. Broome 1407, 1639 

p. Harrison 1080, 1086 

Stubbs v. Clarinda, C. S. & S. W. 

Ry. Co. 1294, 1859, 1408, 
1593 
p. Lund 870, 902, 910 

Sturgesp. Green 1329 

Sturgis p. Slacuni 449 

Sturtevant v. Orser 866 

Stuyvesaot v. Browning 1276 

Sugg v. Farrar 999 

Suliote, The 1679 

725 
1287 
b. Cleveland 554, 638 

p. Ellison 586, 634 

v. O'Keefe 193, 20S 

v. Park 262, 336 



3igitiz eC by GOOgk 



TABLE OF CASES. 



Reference to Section; 



1211 

15, 464 

1681 

1487 

880 
1216 



Sullivan v. Sanders 

p. Tuck 
Sultana, The 
Summer v. Stark 
Summeril v. Elder 
Summerman p. Knowles 
Summers v. Cook 1072 

Sammerville v. Wann 1335 

Sumner v. Cotter 820 

v. Hamlet 460 

p. Woods 820 

SnnboU v. Alford 509 

Superintendent of Public Schools 

v. Heath 1216, 1287, 1301 

Superior, The 1681, 1774, 1779 

Supervisors of Ulster County p. 

Brodbead 200 

Surplus of the Ship Trimountam 1787 

Sutherland v. Harrison 1104 

f. Ryeraon 1235 

Sutton r. The Albatross 1009, 1171, 

1532, 1537 

Swain p. Cato 1066 

d. Senate 203 

v. Shepherd 820 

Swallow, The 1810 

Swan e. Benson 1083 

p. Bournes 510 

v. Swan 1147 

Swann v. Morris 611 

Swannton v. Morning Star Mining 

Co. 159,196,206 

Swanwick p. Sothern 905 

Swarthout v. Curtis 1172 

Swasey v. Steamer Montgomery 111 
Sweeny v. Easter 258, 260 

Sweet v. Bartlett 193, 203 

v. James 1223, 1334, 1532 

v. Prm 20, 310, 466, 740, 873 
Swett ■>. Black 1 798 

Swift d. Martin 1199 

Swope c. Stantsenberger 1382, 1425 
Sydney L. Wright, The 1690 

Syeds o. Hay 980 

Sykeip. Betts 1072, 1107 

Sylvan Glen, The 1723 

Sylvan Stream, The 1696, 1725, 1729, 
1756 
Symmes v. Fraiier 493, 494 



Tabor v. Armstrong 1800 

Tacoma Foundry, &c. Co. ». Wolff 

1405 



Tacoma Lumber Co. p. Kennedy 

1405 

Taggard o. Buckrnore 1800 

TaTbott o. Goddard 1327 

Talcott v. Bronson 203, 239 

Talieferro v. BarneU 991, 1119 

Tallasee, in re 244 

Tamvaco i>. Simpson 322, 323, 326 

Tancrecl v. Leyland 696 

Tangier, The 1699, 1707 

Tanner v. Hicks 1119 

v. Scovell 837, 838, 905 

Tanqueray-Willaume, t» re 1166 

Tansley e. Turner 835 

Tarling p. Baiter 861 

Tarpy p. Persing 617 

Tarver v. Tarver 173 

Tate v. Bush 1070 

v. Meek 271, 313, 328 

Tat urn b. Cherry 1235 

Taylor p. AUoway 1084 

v. Baldwin 71, 1081,1147, 

1149 

p. Burlington, C. R. & M. 

R.R.Co. 1201,1470, 1524, 

1626, 1626, 1627, 1646 

p. Carry! 1810a 

v. Dodd 1165 

v. Eckford 1109 

v. Fields 788 

o". Ford 1074 

c.Foster 1135,1159 

p. Gilsdorff 1243, 1266, 1S67 

p. Harwell 1164 

u. Hathaway 776 

v. Huck 1185, 1226, 1382 

v. Hunter 1074 

v. La Bar 1459, 1474 

v. Mayor 1299 

v. Montgomery 1318 

b. Murphy 1804,1602 

t>. Nelson 566, 625 

p. Robinson 434 

v. Taylor 1164, 1586 

v. Weston 388 

Teal n. Spangler 1534 

Teaz p. Chryitie 1532 

Tebav ». Kirkpatrick 1289, 1502 

Tedder p. Steele 1090 

Tedford v. Wilson 42 

TelfencrB. Dillard 1685 

Tell p. Woodruff 1558 

Tempest ». Fitzgerald 809 

Teuipleman p. Gresham 638, 1041 

Templeton p. Home 108, 1558 

Templin v. Chicago, B. ft P. Ry. 

Co. 1236, 1283 

Ixxxix 



3igitiz eC by GOOgk 



TABLE OF CASES, 



Reference to Sections. 



Ten Broeck ». De Witt 209, 212 

Tennyu. Sly 1818 

Terboaa v. Williams 698 

Terhune «. Colton 1178 

Terney p. Wilson 223 

Terril p. Roger* 308 

Terry v. Bamberger 480 

v. George 1119 

i'. McCuntock 1023 

Tete v. Farmers' & Merchants' 

Bank 375, STT 

Tewksbury v. Bronton 982, 990, 

U93, 1494 
Texas & Pacific By. Co. p. Bay- 

liss 638 

Texas & St. Louis B, R, Co. v . 

Allen 1226, 1668 

Texas & St. Louis R. R. Co. v. 

McCaugbey 1668 

Thacher it. Hannahs 449 

v. Moors 418 

Tbames, The 1709 

Thames it. Caldwell 1090 

Thames Iron W. Co. v. Patent 

Derrick Co. 526, 1038, 1038, 

1040 

Tbarpe p. Dunlap 1088, 1092, 1119 

Tharratt p. Trevor 160 

Thatcher p. Harlan 1021 

Tbaxterc. Williams 1245, 1458 

Thayer v. Daniels 162 

p. Finnegan 1168, 1166, 1169 

Thielman v. Carr 1199, 1465 

Thigpen p. Leigh 467 

v. Maget 631 

Thoma's Estate 1446, 1478 

Thomas v. Bacon MS 

o. Barber 1417 

v. Board of Education 1375 

p. Bridges 1076, 1088 

v. Huesman 1220, 1406 

1410, 1413, 1418 

v. Industrial University 1375 

v. James 1404 

p. Kiblinger 1200 

p. Mowers 1470 

v. Osborn 1679, 1688, 1699 

v. Ownby 1571 

v.Turner 1206 

p. Von Kapff 79 

v. Wyatt 1092 

Thomas Fletcher, The 1680, 1681, 



Thomas McManus, The 
Thomas Sherlock, The 
Thompson t>. Cooper 
Thompkina p. Manner 



Thompson, The, t>. Lewis 110 

Thompson's Case 1511, 1552 

Thompson p. Anderson 581 

p. Baltimore & Ohio 

R. R. Co. 808 

v. Dawson 1091 

e. Dominy 951 

p. Gilmin 11M 

p. Gilmore 711 

v. Gray 807 

p. Hefiner 1114 

p. Lacy 505, 618 

v. McGill 1081 

v. Mead 554, 568, 614 

p. Powell 603 

it. Biggs 57 

r. Shepard 1266 

p. Sheppard 1074, 1102 
v. Small 322 

it. Spinks 603 

p. Stewart 911 

v. Thompson 884, 1094, 
1099 
p. Trail 897 

p. Wedge 806,811, 850, 

855 

it. Wickersfaam 1882 

Thomson it. Smith 1127 

Thornton v. Carver 576a, 577 

v. Knox 1063, 1074, 1084 

v. Neal 1101 

Thorpe p. Durbon 1109, 1468, 1487 

Thorsen p. The J. B. Martin 1 7 23 

Threfall v. Berwick 499, 501 

Thurman p. Petlitt 1197 

p. Stoddard 1076 

Thurston t>. Blanchard 853 

Tibbetts p. Moore 1421, 1425 

Tichenor v. Allen 1082 

Ticonderoga, The 1769 

Tiernan v. Beam 1092, 1101 

v. Thurman 1063, 1083, 

1084, 1086 

Tifiany p. Stewart 217, 222 

Tifft p. Verden 572 

Tigress, The 886, 896, 898, 967 

Tiley p. Thousand Island Hotel 

Co. 1543 

Tilford v. Wallace 1634 

Tillman p. Reynolds 132, 196 

Tilton,inre 1756 

Tingley p. White I2S3 

Tinker v. Geraghty 1411 

Tinsley v. Boykin 1226 

p. Craig 607 



3igitiz eC by GOOgk 



TABLE Of OASES. 



Referraca to Section*. 



Titusville Iron Work* v. Keystone 

Oil Co. 1309 a 

Tiizard v. Hughes 1356 

T. L. Wadsworth, The 1694 

Tobey v. McAllister 1088 

Tod v. Kentucky Union Ry. Co. 

1648 
Todd v. Davey 1128 

Toledo, D. k B. R. R. Co. b. 

Hamilton 692a, 1625a, 1664 

Toledo, Wabash & Western Ry. 

Co. D. Gilvin 846 

Tombs v. Rochester R. R. 1502 

Tome v. Four Cribs of Lumber 485 
Tomlinson i\ Greenfield 556 

Tommey v. Spartanburg & Ashc- 

ville R, R. 1618,1663 

Tonawanda, The 1799, 1803 

Tooke v. Hollingworth 858, 882 

Tooker p. Rinaldo 1216 

Toole ■>. Jowers 455 

Tooley p. Gridley 1070 

Topping d. Brown 1199, 1583 

Torrey o. Martin 1147, 1150 

Towle v. Raymond 644 

Towner n. Remick 1211 

Townley v. Crump 823, 838, 841 

Towns d. Boarman 625 

Townsend v. Brooks 777 

o. Newell 1014 

Townsend Savings Bank v. Ep- 

ping 109, 708 

Tracy v. Rogers 1199, 1245, 1257, 

* 1258, 1868 

Train v. Boston Disinfecting Co. 

738 
Trammell v. Hudmon 1187, 1287, 

1671 
1226, 1438, 
1443, 1470 
Traphagen v. Hand 1079 

Trappan v. Moria 578 

Tnak r. The Dido 205 

v. Searle 1355, 1564 

Travis u. Thompson 296, 297, 299, 
304 
Traadwell v. Aydlett 910, 961 

Tredinniek i>. Red Cloud Con- 
solidated Miu. Co. 1190, 1313, 
1421 
Tree v. The Indiana I68S 
Trent v. Hunt 596 
Trescott t>. Smyth 570 
Trensch v. Shryock 1206,1285,1304, 
1310, 1319, 1407, 
1436 
Tribble «r. Oldham 1075 



i. Mount 



Trieber v. Knabe 5622, 564, 622 

Trimble v. Prickett 96 

Trinity House v. Clark 271 

Trist v. Child 48, 48, 52 

Trittipo v. Edwards 1041 

Triumph, The 1676, 1776 

Trotter v. Erwin 1099 

Truebody e. Jacobson 1064 

Truesdell v. Gay 1809 d 

Trullinger v. Kofoed 1519, 1520 

Trust o. Firsson 781, 968, 1002, 

1003 

Trustees v. Greenough 201, 208 

Tuck o. Calvert 1109 

Tucker v. Adams 603 

v. GeBt 1260 

v. Hadley 1076, 1081 

r. Humphrey 869, 922, 926, 

940, 941 

b. Taylor 745, 747 

Tufts t. Sylvester 865, 927 

Tullis 17. BushneU 184, 185, 189, 193, 

203, 210 

Talioch o. Rogers 1421 

Tunstall v. Winlon 920 

v. Withers 109S 

Tupery v. Edmondson 620 

Turkea v. Reis 1069 

Turner o. Crawford 217 

v. Deane 180 

v. Horner 106S, 1092, 1096 

t>. I. B. & W. Ry. Co. 1560 

v. Laasiter 1127 

v. Liverpool Docks Co. 869, 

911, 913, 916, 953 

w. Marriott 1105 

Ei. Phelps 1101 

v. Bobbins 1373, 1874, 1422 

v. Scovell 962 

n. Strenzel 1287, 1394 

v. Wentworth 1313, 1343, 

1449 

Torney v. Saunders 1257 

Turno v. Parks 155, 185, 220 

Tun-ill v. Crawley 499 

Turwin v. Gibson 156, 228 

TuthiH v. Skidmore 800, 802, 857 

Tuttle, in re 198 

Tuttle r. Dennis 645 

v. Howe 1260, 1494, 1495 

ti. Walker 579 

i>. Walton 976, 377 

Twiggs 6, Chambers 173, 288 

Twitty p. Clarke 620 

Two Hundred and Seventy-fire 

Tons of Mineral Phosphates 1720 

Two Marys, The 1723, 1790 

zci 



;y Google 



TABLE OF CASES. 



Reference to (tactions. 



Tydlngs p. Pitcher 1084 

Tyler v. Blodgett & Davis Lum- 
ber Co. 745, 1009 
v. Currier 1827 
v. Gould 57 
p. Jewett 1327, 1382 
Tyler Tap R. R. Co. v. Driseol 

1618, 1668 
Tyrone Si Clearfield R. R. Co. t>. 

Jones 1665 

Tysen v. Wabash Ry. Co. 89, 1094 



Ufford v. Wells 
Uhl v. Dighton 
Underhill v. Cor win 
Underwood v. Waicott 



Union Bank ii. Laird 876, 388, 408, 
411 
Union Express, The 1688 

Union Hall v. Morrison 1 135 

Union Nat. Bank tt. Oceana Co. 

Bank G7 

Union Pacific R. B. Co. v. United 

States 279 

Union Slate Co. v. Tilton 761, 1041 
Union Trust Co. p. Trumbull S3, 62 
Union Warehouse Co. u. Mcln- 

tyre 555 

United States v. Ferry Co. 1729 

v. Lntz 807 



United States Engine Co. v. OH 



United States Nat. Bank v. Bona 
cum 1343 

United States Trust Co. p. New 
York, W. S. & B. R. R. Co. 92 

Unity Joint Stock Mut. Banking 
As'so. t>. King 1139 

University of LewUburg v. Reber 

1378 

University Publishing Co. u. Pif- 



fet 
Upper Appomattox Co. v. Hamil- 



620 



Vail v. Drexel 1100, 1126 

v. Foster 1086 

p. Meyer 1260,1262,1270 

Vairin p. Hunt 620 

Valee c Fleming 1135 

Valentine u. Hamlett 601 

p. Jackson S7t 

v. Rawson 1417 

Valle b. Cerre 465 

Valleio v. Wheeler 271 

Vallette v. Whitewater Valley Ca- 
nal Co. 91 
Valpy v. Gibson 921, 938 
v. Oakelev 838, 852, 861 
Van Alen v. Am. Nat. Bank 37 
Van Allen, in re 241 
Van Bibber o. Reese 1174 
Van Billiard n. Nace 1284 
Van Casteel v. Booker 911, 916 
Van Clief o. Van Vechten 1299, 
1513, 151* 
Van Court ii. Bushnell 1258, 153! 
Van Denburgh p. Greenbush 1375 
Vandergrift's Appeal 1222 
Vanderzee p. Willis 231 
Vandewater v. Mills 1676,1678,1799 
Vandoren v. Todd 1071, 1086, 1089 
Van Duzor v. Allen 820 
Vaue v. Neweombe 1018, 1645 
Van Etten o. Cook 751 c 
p. State 115 
Van Every v. Adams 187 
Van Lone v. Whittemore 1370 
Vanmeter p. Vanmeters 89 
Van Namee v. Bank of Troy 257 
Van Patten v. Leonard 616 
Van Pelt p. Hartough 1216 
Van Rensselaer v. Snyder 629 
Vansands p. Middlesex Co. Bank 

3 75, 876, 877, 380, 384 
Van Sickle v. Belknap 101 

Vifu Stone p. StilWell Manuf. Co. 

1532, 1533, 1536 
Vantilburgh v. Black 1421 

Van Winkle n. Houten 1166 

Variol v. Doherty 993 

Varner v. Rice 606 

p. Spencer 631 

Vasser v. Buxton 820 

213 



U pshaw v. Hargrove 
Urquhart p. Mclver 
Utility, The 


1084 




terR.R.Co. 


291, 


987 






304, 806 


1800 a, 1801 




ii. Vanderstegcn 


130 


Utter ti. Crane 


1294 


Vaughe 


i". Haldeman 


1341 



jipismb, Google 



TABLE OF CASKS. 



Reference to Sections. 



Vaughn v. Hopson 820 

v. Vaughn 190 

Vaiiase v. Russel 567 

Vecht v. Brownell 576 
Velox, The 1 718, ] T91, 1 792 

Vellmaii n. Thompson 1738, 1809 

Venable ». Beanchanip 1154 

Vendome Turkish Bath Co. b. 

Scbettler 13S9 



Venture, The 


1160, 1773 


Verity v. Wylde 


216 


Vermilye v. Express Co 
Vernon r. Smith 


482 


79 


Vertuo t>. Jewell 465 


877,880,885, 




946, 955 


Victor, The 


1769 


Victory, The 


203, 20S 


VillenuTe v. Sines 


712 


Vinal v. Spofford 

Vinson v. Hallowell 


641, 697 


642 


Vinton t>. Baldwin 


422 


c. Builders' & 


M an u f ac- 


turers 1 Asso. 1200 


Virgin, The 


1786 


Virginia, The, v. Kroft 


301 


Virginia Rnlon, The 
Voell v. Kelly 


1719 


204, 206, 209 


Vogel d. Luitwieler 
Vohner v. Wharton 


1283 


577, 580 


Volunteer, The 


268, 270, 327 


Voorhis d. 1 instead 


843 


Vote v. Cockcroft 


1729, 1806u 


». Whitney 


690 a, 692 


Vreeland v. Blnnt 


56 


B.Boyle 


1216 


b. Bramhall 


1216 


b. Ellsworth 


1201, 1293, 




1803, 1574 



Wabash & Erie Canal Co. 



109 



Wabash Co, e. Beers 1558 

Wabash, St. Louli Si Pac. By. Co. 

v. Ham 91 

Waddell r. Carlock 5, 1099, 1123 

B. The Daisy 1722, 1765 

Wade b. Greenwood 1102 

b. Hamilton 461 

p. Orton 196, 198, 203 

b. Rcitz 1200, 1404, 1455 

Wadentan v. Thorpe 1384 

Wades v. Figgatt 639 

Wadsworth r. Hodge 1260, 1261 



Wagar v. Briscoe 1235, 1244, 1245, 

1247, 1257, 1384, 1555 

Waggoner v. St. John 1729 

Wagner b. Darby 1330 

Wafnwright v. Barclay 1282 

Wait b. Baker 913, 916 

Wakefield v. Johnson ■ 1127 

Wakefield Bank, ex parte 244 

Walbridge's Appeal 1222 

Walbridge v. Prnden 593, 632 

Waldrom b. Zachnrie 1098 

Wales ». Coffin 1142 

Walkenhorst v. Coste 1236 

b. Lewis 1108,1119 

Walker t>. Birch 15, 418, 426, 449 

v. Burt 9,1247 

v. Daimwood 1187, 1569 

v. Floyd 236 

b. Fuqua 1070 

Jeesup 1261 



i. Johns 



564 



b. Eee 1119 

b. Miss. Valley & West- 
ern R. R. Co. 1628 
r. Paine 1235, 1614 
b. Sargeant 115, 191, 193, 
217, 218 
b. Struve 1074, 1086, 1098 
v. Ware, H. & B. Ry. Co. 

1674 



i. Willi! 



1092 



Walkyrien, The 

Wall v. Garrison obi 

b. Long 698 

b. Robinson 1313, 1314 

Wallace v. Campbell 1081 

e. Lawver 154 a 

b. Melc'hior 1329 

b. Smith 620 

b. Woodgate 310, 317, 468, 

641, 642, 742 

Wallach b. Cbesley 609 

Waller v. Best 13 

W alley B. Montgomery 884, 928 

Wallia b. Smith ' 1138, 1512 

Walls p. Long 22, 683 

Walsh v. McBrlde 1086, 1093 

t>. McMenomy 1291 

Walsh Brothers, The 1677 

Walter v. Hanson 1063 

b. Rosa 4SS, 880, 946, 951 

Wallers v. The Mollie Dozier 1 729 

Walton b. Dickerson 115, 187 

v. Hargrove* 1081, 10H2, 

1083 

578 a 



;y Google 



TABLE 0? CASES. 



Reference to Section*. 



Wangler v. Franklin 


820 


Watson it. Smith 




217 


Warburton v. Edge 


132 


v. Wellington 




43, 55 


Ward v. Chamberlain 


1676 


v. Wells 




1063 


o. Craig 115, 131, 143, 146, 152 


Watt v. Scofield 


57 


a, 580, 614 


c. Kelly 


IS05 






1455 


ir. Kilpatrick 1218 


1274, 1345 


v. White 




1092 


v. Orton 


198 


Watte™ it. Parker 




1102 


r.Syme 

ti. Thompson 


184 


Watts v. Christie 




248 


1697 a 


v. Sweeney 




744, 758 


i'. Words worth 


153 


p.Ward 




485 


Warden n. Marshall 


818 


v. Whit ting ton 




1206, 1329 


t). Sabine 120! 


1469, 1470, 


Walts-Campbell Co. P. 


Yu 


engling 




1488 


1335 


1384, 1444 


Ware it. Blalock 


«u 


Waubau shine, The 




1698 


Ware River R. R. Co. o. 


1083, 1099 


Waugh v. Dunham 




499 


Vibbaid 


Weathersbee v. Farrar 




457 




800, 841 


Weathersby v. Sleeper 
Weaver v. Barden 




70 


Wirfield n. Campbell 167, 169, 219 




1085 


v. Oliver 


620 






1102a 


Waring v. Cox 


875 


it. Demuth 




1519, 1524 


v. Dewberry 


628 


v, Lutz 




1222 


v. Slingluff 


598 


it. Sells 109, 1325, 


1327, 1330, 


V. Waring 


1174 






1334, 1558 


\i arner v. Morse 


1179 a 


v. Sheeler 1244 


1257, 1259 


r. Scott 


1086 


Webb v. Robinson 1081 


1083, 1092 


v. Van Alstyne 


1065, 1104 


it. Sharp 555 


577, 581, 609 


Warren v. Barnett 


418, 603 


Webber ti, Cogswell 




738 


v. Branch 1063 


, 1107, 1116 


v. Mackey 




1102 


p. Fenn 1061 


1062, 1069, 
1074, 1082 


Weber v. Weatherby 




1256, 1843, 
1387 




585 


Webster v. Howe Machine Co. 394 


v. Kelley 1680, 


1682, 1725, 


Vi McCollough 




1083, 1087 




1729, 1746 






1110 




1405, 1421 


v. Nichols 


542,544, 567, 


P. Smith 


1262 






1039 


ii. Woodard 


784 


». Real Estate 


Im prove - 


Washburn v. Burns 1216 


1262, 1270 


ment Co. 




1356 


u. K abler 


1293, 1449 


v. Wakeling 




1349 


Washington v. Williamson 


552, 573 


Weed v. Boutelle 153, 


155, 165, 166, 


Washington Iron Works 


V. Jen- 


191 


193, 212, 227 




1559 


v. Hall 




1130 


Watson v. Davis 


1080, 1098 


it. Standley 




544 


Waterfield v. Wilber 


1102 


it. Tucker 




105 


Waterman it. Younger 


1307 


Weeks v. Circuit Judge 




223 


Waters B. Grace 


146 






1019 


Watrous o. Elmendort 


1590 


v. Little 




1599 


Watson, ex parte 


889, 921 


v. Walcott 




1252 


Watson u. Beatly 


476 


Wegener it. Smith 
Wefir v. Shryock 
Weil v. McWhorter 




274 


it. Bell 


1127 




1654 


c. Columbia Bridge Com- 




576 a 


pany 


1224 


Weill p. Levi 




229 


r. Cross 


508, 517 


v. Weill 




168 




1272, 1585 


Weinberg it. Rempe 
Weisman it. Buffalo 




1069, 1115 


it. Johnson 


556, 60G 




1512 


r. Lyon 


128 


Weiss it. Jalin 




573, 627 


it. K. Y. Central 


R. R. 


Welch p. Hicks 




1102 


Co. 


107, 1558 


v. McGrath 




1403 



■::«::.:., CoOgfe 



TABLE OF CASES. 



■Inference to Sections. 



Welch v. Porter 



1187, 1468, 1470, 
1490 

p. Sherer 1292, 1599 

s. Sullivan 1141 

H'elde p. Henderson 1668 

Weldon v. Gould 782 

Wellborn n. Bonner 1063 

ii. Williams 1092 

Weller e. McNabb 1268, 1542 

Wellesley v. Wellesley 78 

Wells v. Board of Education 1514 

v. CahD 1287 

r. Canton Co. 1470,1478 

v. Elaam 178, 220, 228 

v. Francis 1108, 1135 

v. Harter 1086 

v. Hatch 140, 145, 158, 165, 

193, 200 

v. Hornish 671,572 

p. Mehl 1647 

p. Morrow 1085, 109!, 1119 

v. Riley 1142, 1146 

p. Sequin 566 

p. Smith 1107 

v. Southern Minn. Ry. Co. 1629 

p. Thompson 603 

Welsh's Appeal 1174 

Welsh o. Bell 800, 801, 806 

p. Hole 113, 137, 157, 209, 

234 

«. The North Cambria 1725 

b. Woodbury 1485 

Wendt t>. Martin 1135, 1262, 1263, 

1269 

Wentroth's Appeal 725, 1665 

Wentworth v. Day 487, 488, 489, 

491,493 

p. Dows 1589 

p. Miller 550 

v. OuthwsJte 861, 917, 

921, 962 
613 
1133 

Wert p. Naylor 1083 

Werti's Appeal 1164 

Wescott p. Bunker 1205, 1286, 1416, 
1420 
West i'. Fleming 1552 

p. Klots 1485 

West Branch Bank p. Armstrong 

398, 409 
West Coast Lumber Co- p. New- 
kirk 1190, 1276, 1356, 1398, 1400, 
1401 
West of England Bank v. Batch- 



Western Bank p. Distilling Co. 



Westfield o. Great Western Ry. 

Co. 332 

Westland v. Goodman 1606 

Westmoreland p. Foster 990 

v. Wooten 576 o, 625 

Weston p. Dun lap 1201 

p. Morse 1729,1767 

v. Olsen 1560, 1616 

o. Weston 1679 

Westwood v. Bell 423, 447 

WestsyntMns, in re 858, 953 

Wethered p. Garrett 1600 

Wetmore v. Marsh 1393 

Wetsel p. Mayers 654, 614 

Wexford, The * 1799 

Weyer v. Beach 1218, 1287, 1564, 

1614 

Weymouth v. Boyer 482 

p. Sanborn 725 

Whaley p. Jacobson 458, 635 

Wharton n. Douglas 1810 

Wb.es.ton p. Berg 1248 

p. Newcorabe 187 

p. Trimble 1254,1264 

Wheeler p. Almond 1216, 1456, 1566 

v. Hall 1589 

p. Howell 1163 

p. Schroeder 1223 

v. Scoheld 1254, 1618 

Wheeler & Wilson Manuf. Co. p. 

Teetzlaff 820 

Whetsel v. Roberts 1094 

Whidden v. Toulmin 573 

Whistle p. Newman 204 a 

Whistler, The 1756 

Whitaker p. N. Y. & Harlem R. R. 

186 

778, 784, 1382, 

1866, 1663 

Whitcomb p. Straw 158, 165 

White's Appeal 1274, 1388 

White v. Americus 1707 

v. Bird 456 

v. Blakemore 1099, 1107, 1108, 

1123 

, 1335, 1478, 

1571, 1572 

p. Downs 1063, 1092, 1100, 

1111 

v. Dumpke 1391, 1532 

p. Fisher 1089 

v. Gainer 1018, 1080 

p. Griffin 791 

p. Harlow 182 

v. Hoyt 731 

b. Jones 1063 

v. Miller 1304, 1305, 1329 

XCT 



Co. 
p. Smith 



■>. Chaffln 



3igitiz eC by GOOgle 



TABLE OP CASES. 



White 


o. Mitchell 

v. Moses 
v. Mullini 

v. Prior 






929 
1134 
189? 
189, 791 
712 
1697 a 




p. Smith 


7S1 


7S9 


734, 737, 



742 

v. Solomonsky 861 

v. Stanton 1200, 1421, 1423, 

1424 

v. Stover 1063, 1092 

v. Street 1067 

o. The Cynthia 1780 

v. Tlnf Emma 1703 

t>. Vaim 289, 298 

i>. Wakefield 1084 

ii. Washington School Dis- 
trict 1192, 12ST 
v. Welsh 800, 857, 902, 905 
v. William* 1074, 1092, 1096 
White's Bank v. Smith 1681 
v. Toledo Ins. Co. 41S 
White Lake Lumber Co. v. Rus- 
sell 1287, 1421, 1423, 1556 
White Lake Lumber Co. v. Stone 

1213 

Whitehead v. Anderson 893, 917, 

919, 939, 940, 941, 943 

v. Chadwell 789 

v. Fisher 1120 

v. Vaughan 266 

Whitehorn v. Cranz 1 108 

Whitehurst v. Yandall 1116 

Whitelegge o. De Witt 184 

Wbiteley v. Learoyd 1181 

Whitenack n, Noe 1216, 1408, 1423 

Whiteside v. Lebcher 1286 

Whitford v. Newell 1207, 1236, 1313, 

1314, 1354 

Whiting V. Coons 661 

v. Eicbelberger 548 

■>. Lake 662, 632 

v. Story Co. 1875 

Whitlock v. Hay 825 

Whitmore t: Poindexter 637 

o. Sbiverick 797 

Whitney v. Beckford 292 

it. Joslin 1207, 1416, 1516, 

1573 

v. McConnell 820 

v. Richardson 1184, 1145, 

1146 

Whittaker v. Clarke 159 

Whitten v. Saunders ■ 1117 

Whittier v. Blakely 1221, 1406, 1420 

v. Hollister 1287, 1269 

xcvi 



Whittier n. Puget Sound, L. & T. 

& Banking Co. 1326 

p. Wilbur 1287 

Whittington v. Farmers' Bank. 241 

Whittle v. Newman 236, 237 

Whitworth o. Benbow 793 

Wickham b. LeviaWmes 111, 1745 

Wickman v. Robinson 1105 

Wiggins v. Bridge 1287, 1512 

v. Houghton 712 

Wight v. Maxwell 1729 

Wightnian t>. Brenner 1216, 1286 

Wigton's Appeal 1538 

Wither o. Baker 189, 233 

Wilcox v. 500 Tons of Coal 308 

v. Kellogg 788, 789, 793 

v. Woodruff 1313 

Wilczimki v. Lick 557 

Wilder v. French 1242 

Wilds n, Smith 867, 981, 934 

Wildy v. Mid-Hants Ry. Co. 1675 

Wiley v. Carlisle 1102 6 

v. Smith 902, 9S1, 934, 944 

Wilkerson v. Rust 1257, 1272, 1276, 

1310 

Wilkes o. Harper 78 

p. Smith 1117 

Wilkie v. Bray 1219, 1235 

Wilkins o. Batterman 212, 214 

v. Carmichael 113, 156, 1 706 

v. Litchfield 1245, 1247 

v. Taliafero 672 

Wilkinson, ex parte 858 

Wilkinson t>. Hoffman 1375, 1378, 

1618 

i). Ketler 550, 603 

u. May 1063, 1064, 1092, 

1101 

v. Parmer 1072 

Willamette Falls, &c. Co. r. Re- 

mick 1323, 1366 

Willamette Falls T. & M. Cc, v. 

Riley 1492, 1558 

Willamette Lumber Co. i\ Eremer 

1190, 1372, 1421, 1600 
Willamette Manuf. Co, v. Los An- 
geles College Co. 1190, 1569 



v. Mago 



1706 



1236, 1263 
1063, 1088 
v. White 430 

Wilier v. Bergentfaal 1232, 1658, 1560, 
1571, 1592, 1605, 1613 
Willett v. Carroll 1167 

Willetts r. Earl 1216 

Willey v. Topping 1502 

William & Emmeline, The 1680 



3igitiz eC by GOOgle 



TABLE OF OASES. 



William Cook, The 1690, 1691 

William F. Safford 1699 

William Gates, The 1778 

William Law, The 1713 

William T. Gravel, The 1794, 1811 
Williams, in re 241, 244 

Williams t>. Allsnp S, 744, 179S 

b. Aylcsbnry & B. Ry. 

Co. 1674 

n. Birch 4S4 

v. Bradford 1816 

v. Carwardine 490 

v. Chapman 1571, 1738 

v. Chicago, &c Rj. Co. 

1429, 16KB 
p. ChUholm 1199 

v. Christian 1099, 109B 

v. Controllers 1875 

p. Craw 1071,1074 

v- Cunningham 1109 

p. Deutscher Verein Clnb 

1579 
p. Edison Electric JJIn- 

minating Co. 1C79 

v. Gibbes 1136 

p. Holmes 564 

p. Ingersoll 44, 48, 166, 

223, 225, 927 
p. Jenkins 229 

p. Lowe 875 

p. MuCarty 1074, 1098 

p.Moore 801,838 

p. Nichol 1164 

p. Porter 1911 , 1422, 1425, 
1607, 1613, 1615 
p. Potter 629 

p. Rice 1178 

v. Roberts 1068, 1086 

p. Roe 1102 

p. Samuels 1069 

v. Santa Clara Mining 

Co. 1190, 1255, 1480 
p. Tilt 41B 

p. Uncompahgre Canal 

Co. 1256, 1238 

p. Waldo 108 

p. Webb 1463 

p. Wood 570, 618, 619 

». Young 1092 

n v. Hogan 1 729 

p. N. J. So. By. Co. 1218, 

1660 

v. Woten 1067 

WUlingham v. Hardin 1076 

v. Leake 1115 

e. Long 1187, 1287 

Willis p. Gaj 1084, 1086 



Willis r. Searcy 1106 

Willison ». Douglas 1900, 1519, 1520, 

1524 

Wills p. Barrister 641 

p. Mehl 1647 

Wilmshnnrt p. Bowker 884 

Wilson, in re 115, 127, 182, 155, 165, 

166, 200 

Wilson p. Balfour 21 

p. Barnard 708 

p. Emmett 122, 122a 

p. Ewing 1072 

p. Forder 1484 

p. Graham 1086 

p. Grand Trunk By. Co. 26! 

p. Gnytoa 16, 487, 492 



p. Hopkins 1200 

p. House 177,230 

p. Howell 1327 

p. Huntingdon Co. 1375 

v. Keating 1079 

p. Kyraer 809 

p. Lawrence 1725 

p. Lyon 1068, 1064, 1083, 

1090 

v. Martin 731, 1035 

P. Merryman 1206, 1810 

p. Moore 1163 

p. Piper 1168, 1179, 1173 

p. Proctor 1370 

s. Robertson 792 

p. Sawyer 1086 

v. School DUt 1375 

p. Sleeper 1242, 1324 

p. Smith 261 

». Stewart 603 

p. Taylor 777, 1032 a 

e. Walker 577 

p. Wilson 1174,1319 

p. Wright 229 

Wiltse p. Hurley 1142 

Wilvcrt p. Sunbory Borough 1222 

Wimberly p. Mayberrr 1462, 

1462a 

Winans p. Mason 237 

Winchester p. Costello 632 

p. HeiskeU 230 

p. Mid-Hants By. Co. 

1674 

Winder p. Caldwell 725, 1195, 1206 

Windsor p. Brown 151 

Wing p. Can- 1199, 1487 

p. Goodman 1068, 1092 

p. Griffin 276, 982, 983 

p. Tottenham & H. J. By. 

Co. 1674 

xcvii 



3igitiz eC by GOOgle 



TABLE OF CASES. 



Reference to Section*. 



WiDgard v. Banning 90S, 338, 997, 

1014, 103T 

Win?ert v. Stone 12GT 

Wick* o. Hassall 823, 832 

Winn t>. Henderson 1273 

Winslow u. Central Iowa E. Co. 17S 

p. Newell 1146 

v. Urquhart 719, 781 

Winston v. Kifpatrick 106 

Winter v. Anson 1073, 1074, 1073 

v. Coit 460 

r. Drury 55 

p. Hudson 1290, 1512 

Wintermute ». Clarke E13 

Winters i>. Fain 1071 

Wisconsin Marine, &c. Bank v. 

Filer 854 

Wisconsin Planing Mill Co. v. 

Gram* 1283, 1332 

Wise v. Old 

Wiseman p. Hutchinson 1092 

Wishard v. Biddle 

Wlsbart v. The Jos. Nixon 1715 

Winner v. Ocumpaogh 42, 542, 

543 

Witch Queen, The 1797 

Witbingtoa v. Corey 1145 

Witman t>. Walker 1329, 1404 

Witte v. Meyer 1605 

Woglam p. Cowperthwaite 590 

Wolcott a. Ashenfelter 592, 630 

Wolf, m re 209 

Wolf v. Batchelder 1284, 1332 

v. Hough 298 

o. Summers 6, 269, 609 

WolFe p. Oxnard 1262 

Wolfie o. Nail 1119 

Wolford v. Baxter 1333 

Wollreich ti. Fettretch 1825 

Womble v. Battle 1062, 1063 

«. Leach 631 

Wood p. Anders 177, 196 

v. Calloway 456 

v. Jones 873,880 

r. Lester 77, 1062 

v. Mitchell 48 

v. Fiersoo 487,491,496 

v. Rawlings 1487 

v. Roach 877, 880 

v. St. Paul City By. Co. 14G2 

v. Simons 1449 

v. State 154 a, 231 

v. Sullens 1063 

v. TasseU 905 

v. Verry 162 

D. Yeatman 919, 931, 965 

Woodall t>. Kelly 1094 



Woodbnrn v. Gifford 1245, 1370, 

1372 

Woodbury 0. Grimes 108, 1558 

Woodbulf v. Rosenthal 1134 

Woodland, The 1798, 1808 

Woodley p. Coventry 848, 84S 

Woodmansie e. Holcomb 789,*792 

Woodruff v. Ira 712 

v. S. & C. K. R. Co. 463, 

471 

o. Noyes 965 

v. One Scow 1677 

Woods v. Devin 269 

r. Ellis 1116 

Woodside v. Adams 551, 552, 553, 

570, 627 

Woodward, The 1774 

Woodward p. Echols 1116 

v. Fuller 1599 

p. Leiby 1282 

p. McLaren 1235, 1253, 

1263 

e. Wilson 1262,1271 

Woodworth v. Morse 499 

Woody p. Fblar 1076 

Wooldridge v. Scott 1092 

Woolley p. LouisTilIe Banking Co. 

251 

Woolseyp. Bohn 1327 

Wooiter v. Archer 1235 

Wooten v. Bellinger 1063, 1129 

p. Hill 457 

Wooters p. Hollingsworth 1091 

Worden v. Hammond 1247, 1257 

Work p. Hall 1563 

Worrall p. Johnson 119,124, 137 

Worrel r. Smith 1108 

Wonill v. Barnes 611 

Worthen p. Cleaveland 1252, 1448 

Worthley u. Emerson 1308, ISIS 

Worsham p. McLeod 585 

Wortman v. Kleinschmidt 1616 

Wragg p. Comp. Gen. 1 063 

Wright p. Beardsley 1421, 1425 

e. Bircher 542, 544 

p. Blackwood 1261 

p. Burroughes 203 

v. Cobleigh 115, 118,153, 

155, 165, 166 

p. Cowie 1368,1579 

v. Dickey Co. 583 

p. Ellison 48, 50, S3 

p. Heffner 1010 

p. Holbrook 1104 

v. Hood 1263, 1266 

p. Lawea 919, 939 

p. Link 598 



3igitiz eC by GOOgle 



TABLE OF CASES. 
Reference to Sections. 



Wright v. Pohls ISO* 

o. Reusens 1513 

v. Roberta 1218, 1287, 12! 
502, 6S1, 691 . 



v. Snell 
v. Terry 



26, 702, 707, 721, 
722 



1107,1119 



v. Treadwell 
v. Troutman 
o. Vicker 
v. Williams 508 

v. Wright 184,187,188,193, 
196,206,209,210,211, 
223 



Yearsley ». Flanigen 1349, 14S4 

Yeatcs v. Groves 43, 45, 47, 55, 56 
Yeatman v. King 692 a 

Yeats o. Ballantine 1512 

Yetter v. Fitts 1076 

York Co. Bank's Appeal 789, 790 
Yorke v. Grenaugh 262, 303, 499, 

503, 504, 641 
Yorton p. Milwaukee, Lake Shore 

&W. Ry. Co. 217 

Young o. Atkins 1119 

v. Austin 836 

v. Dearborn IBS, 193, 194, 196, 

204, 209, 212 



Wyatt v. Sluckley 1725 

"Wvckoff v. Anthony 

v. Southern Hotel Co. 
Wydale, The 
Wylde tt. Radford 
Wylie p. Coxe 44, 167 

Wylly Academy o. Sanford 1287 

Wyman v. Colorado Nat. Bank 244, 
258 

v. Lancaster 389 

Wynn o. Flannegan 1098 

Wynne, in re 559, 639 

Wyoming, The 1695, 1699, 1706, 

1713,1727, 1751, 1778, 
1794, 1800 
Wythes t>. Lee 1106,1106 



t>. English 
v. French 
v. Harris 
v. Hawkins 
v. Howell 
v. Kimball 



132 
719 



Yalden, export* 122 

Yale p. Dederer 1265 

Yancey v. Mauck 1063, 1 107 

Yancy o. Morton 1190 

Yarborongh v. Wood 1063, 1094 
Yaryan v. Shriner 1063, 1086, 1089 

Yates v. Railston 323 

v. Smith 1129 



1071 
1094, 1096, 1101 
1421 
676,686, 698 
1222, 1416, 1500 
v. aioULz 1490, 1585 

v. The Orpheus 1725, 1726, 
1728,1748,1807 
». Vough 384, 387,401 

v. Wilson 1216, 1241 

e. Wood 1080 

Young America, The 1781, 1781a, 
1791, 1800, 1801, 1802 
Young Mechanic, The 1731 

Yonngblood v. Lowry 564 

Younger v. Louts 1199 

Yount v. Howell 1133, 1141 

Yourie v. Nelson 235 

Youse o. McCreary 1098 



Zachry v. Stewart 611 

Ziegleru. Gal Yin 1251, 1268, 1265 

Zogbanm v. Parker 188, 203 

ZoU i'. Coraahan 1074, 1099 



3igitiz eC by GOOgle 



jipismb, Google 



5 T5B. Liens for salaries and wages. Stat*. 1893, ch. 77, oh. si, ch. S3. 
5 1190. Keebanics' licni. Bond to be filed. Stats. 1 S9S, eh. 171. 
Colorado. S 1191. Vsebuun' liem. A new act. Laws 1893, ch. 11*. 
Connecticut. | 731. Lien of manufacturers of cotton, wool, or silk on material* pot 

into their hands. Act* 1893, ch. S3. 
FlORtda. 3 1198. Mm *"-'** ' liem. Person* on furnishing material to giro notice 
M owner. Laws 1893, ch. 4143. 
S 463. Factor* 1 liana. Statutory lien for loans and advances for planting, farming, 
or other boaineaa. Laws 1893, cb. 4163. 
Idaho. § 119S. Vol. 2, p. 150, notes 1 and 2 should interchange place-. 
j 119*. HeehanJ-*' liens. New statute. Law* 1893, p. 49. 

* 70S. Lumbermen'* liens. I.ien upon saw log*, wood, and timber. Laws 1893, 
p. 99, 

$ 778. Farm laborers' liana. Law- 1893, p. 60. 
Mab*s.chi:brtts. § 1056- Hotioe in proceeding* to enforce liens upon personal prop- 
erty where owner is unknown. Acta 1893, ch. 173. 
Michigan, f 19M. Xeohaniea' liana. Act amended. Acts 1893, Mo. 199. 
9 1906 Discharge of bv certificate of registry deeds. Acts 1893, No. 17!. 
Misvpsoti. g 713. Lumbermen's liens. Liens upon log* and timber, assignment nf. 

Laws 1893, ch. 78. 
Missr-eiFFi. ' 828. Landlords' liens. Annot. Code 189!, ch. 73. 
§ BIB. Innkeepers' liana. Annot. Code 1893, eh. 76. 
§ 641. Unrj-sUble keepers' liens. Annot. Code 189!, ch. 80. 
{ 1310. Wtli.niM' lien*. Annot. Code 1892, ch. 77. 
North Carolina. § "84. Laborer's lien on crops preferred to lien for advance*. 
Laws 1893, ch. 9. 
§ 1319. Marituns liana. Lien for towage of Teasel. Laws 1893, ch. 357. 
Obbooh. % SIS. Innkeepers' lien. Amended Law* 1893, p. 77. 

§ 676. Agistor's lien. Herder of sheep has a lien. Laws 1893, p. 97. 
South Dakota. § 131B a. Veohanie*' liens. Statute amended. Laws 1893, cb. 116. 
Trxa*. $ 1398. ICeehanies' liens. Sec. 17 of act of April 5, 1889, repealed. Laws 
189S, ch. 12. 
{97. Lions upon erop* foe irrigation. Laws 1 893, eh. 44. 
Wa«hi\oto\. * 711. Lumbermen's lien*. Act amended. Laws 1893, ch. 10, and 
ch. 132. 

* 1330. IT— liaai-aP liens. New act. Laws 1893, ch. 24. 

3 103. Lien upon — '*-- '- doing damage. Laws 1893, ch. 31. 
Wi-cONsix. * 1039. Keehuii-s' liens. Act amended. Law* 1893, ch. 256. 



3igitiz eC by GOOgk 



jipismb, Google 



THE LAW OF LIENS 

AT COMMON LAW, BY STATUTE, EQUITABLE, 
AND MARITIME. 



LIENS AT COMMON LAW. 

L Definition and limitation of the inb- I TIT. Poueinon i 
jecl, 1-13. 
IL Specific and general liens, 14-19/ ) 

I. Definition and Limitation of the Subject. 

1. Introductory. — The present chapter ia intended merely as 
an introduction to the general subject of common law Hens. 
Liens at common law naturally introduce the other forms of liens 
treated of, namely, equitable liens, liens by statute, and maritime 
liens. The characteristics of these liens are generally described 
by stating how they differ from liens at common law. 

The common law liens attach exclusively to personal property, 1 
though there are also liens npon personal property in equity and 
by statute. The common law Hens upon personal property are, 
in many instances, modified or enlarged by statute ; while also 
equitable liens, upon both personal property and real property, 
are in many instances modified or enlarged by statute. By stat- 
ute, moreover, maritime liens are in like manner affected. Finally, 
new liens have been created by statute which had never been as- 
serted at law or in equity, or by maritime law. It is impossible 
therefore to treat of all common law liens by themselves ; to treat 
of all equitable liens by themselves ; and then to treat of all mari- 
time liens by themselves. The subject mast be divided by refer- 
i Oxuham v. EadaUe, S T. * J. «3 ; Gladstone v. Birlej, 2 Met. 401, 40*. 

vol. L 1 1 



;y Google 



§ 2.] ,., b^flf'AT COMMON LAW. 

ence to the ^ub^eHt-rfiatter of the liens : first, by reference to the 
kinds of flr^pfefty to be affected, and then by reference to the 
classes <H persons in whose favor the liens arise. As to the kinds 
of p'rpperfy, there are the two natural divisions of personal and 
mil "t "and maritime property, being governed by peculiar laws, 
'. ."forma a third division. When we come to the consideration of 
• 'the liens pertaining to the several trades and callings, such as the 
liens of attorneys, bankers, and others, within the division of liens 
upon personal property, it has seemed best to treat of them in 
separate chapters, because these liens generally differ from each 
other by marked peculiarities; and, moreover, as a matter of 
practical convenience in referring to the book, it has seemed bet- 
ter to arrange the subjects alphabetically, rather than to attempt 
an order of arrangement as indicated by the principles govern- 
ing these liens. 

The introductory chapters upon Common Law Liens, Equita- 
ble Liens, and Statutory Liens treat of some of the principal 
characteristics of these liens in a general manner ; but reference 
should be had to other parts of the work treating of particular 
liens for a fuller development and illustration of many points 
touched upon in these general chapters, and for others not referred 
to in them. As regards liens npon personal property, there are 
some principles and r.ules applicable to several different kinds of 
liens in respect to the assignment, waiver, and enforcement of 
these liens; and therefore the first volume, which is devoted to 
liens upon personal property, closes with general chapters relating 
to the Assignment of Liens, the Waiver of Liens, and Enforce- 
ment of Liens. 

2. The word "Hen" is here used in its legal and techni- 
cal sense. 1 Much confusion has arisen from using the word in 
a loose manner, at one time in its technical sense, and at another 
in its popular sense. It is often convenient and proper to speak 

' The word " lien " became a law term rily means to " tie," to " bind." The 

at a comparatively recent date. The right common law right of retainer implies poa- 

exlsted, under the name of a right of re- session ; and a common law lien implies 

taincr, ■« early as the reign of Edward possession ; but the term is sometimes 

IT. ; bat the name " lien " does not seam used in a broader sense than the lien 

to hare been given to ihis right till abont right to retain : it ii often used to desig- 

the beginning of the eighteenth century, nate rights which do cot depend npon 

The word isderived from [he French, and, possession, as in the case of statutory, 

further back, from the Latin, and prima- equitable, end maritime liene. 



3igitiz eC by GOOgle 



DEFINITION AND LIMITATION OF THE SUBJECT. [§§ 3, 4. 

of the lien of a mortgage, or of the lien of a pledge. Of coarse 
it will often happen, when the word is used in thia sense, that the 
description of the lien shows that the word is used merely to 
denote the charge or incumbrance of a mortgage, pledge, attach- 
ment, or judgment. And so in many other instances the word is 
used in a popular sense to denote a charge which is not in a strict 
sense a lien by law, custom, statute, or in equity. Bnt in a trea- 
tise upon the subject it is imperative, not only to use the word in 
its proper sense, but also to distinguish between the proper and 
improper use of the word in the decisions that are nsed as authori- 
ties, or are commented upon. 

3. Definitions. — A lien has been well defined to be "a right 
in one man to detain that which is in his possession, belonging 
to another, till certain demands of him, the person in possession, 
are satisfied. 1 ' 1 The code of California 3 declares that "a lien is 
a charge imposed in some mode, other than by a transfer in trust, 
upon specific property by which it is made security for the per- 
formance of an act." 

" The term < lien,' " says Chancellor Bland," 8 " is applied in 
various modes; but, in all cases, it signifies an obligation, tie, or 
claim annexed to or attaching upon property, without satisfying 
which such property cannot be demanded by its owner. Lien, in 
its proper sense, is a right which the law gives. But it is usual 
to speak of lien by contract, though that be more in the nature of 
an agreement for a pledge. And there are Hens which exist only 
in equity, and of which equity alone can take cognizance. The 
existence of a lien, however, and the benefit which may be de- 
rived from it, as well as the mode in which that benefit may be 
obtained, depeud upon principles of Law and circumstances so va- 
rious that it is always indispensably necessary carefully to attend 
to those particulars by which its very substance may be materially 
affected." 

4. A lien at law is an implied obligation whereby property 
is bound for the discharge of some debt or engagement. It is 
not the result of an express contract ; it is given by implication of 

1 Hammond* i>. Barclay, a East, 227, Code. So in Vert* Dakota and Sooth 

MS. par QroaB, J.; and aac McCaffrey v. Dakota: Dak. Code*, 1883, | 1697 o( Civ. 

Wooden, 62 Barb. 316, 323, per John- Code. Oklahoma : Comp. Slaia, ISM, 

■on, J. § 32B». 

1 Codet and Stats. 1885, $ 2872 of dr. * Bidgclj v. Iglebart, 3 Bland Co. 1*0. 

8 



3igitiz eC by GOOgk 



§§ 5, 6.] LIENS AT COMMOH LAW. 

law. 1 It is true that we often speak of a lien by contract; bat 
such an obligation ie rather in the nature of an agreement for a 
pledge or mortgage. In its strict and proper sense a lien is a 
right which the law gives, for, to make a lien by law, possession 
must be given, and possession nnder a contract for security gener- 
ally constitutes a pledge or a mortgage, according to the terms of 
the contract. A lien by contract without possession is an equi- 
table lien or charge. If a lien be given by express contract in 
a case where the law would otherwise imply a lien, the express 
stipulation excludes the implied lien, and limits the rights of the 
parties to the express contract. 3 

6. A lien by oontraot exists only where it is expressly agreed 
that a party may retain the property as security for the work 
done or expense incurred in respect of it. There must be some- 
thing more than a contract for the payment of the price. The 
law implies no lien from such a contract, but the parties may so 
form their contract as to create a lien, if they choose. 1 

A lien by contract cannot, any more than an implied lien, 
exist without possession. The contract itself is not equivalent 
to possession, and it does not give possession. Thus a declara- 
tion at the end of a promissory note or other obligation, that it 
constitutes a lien upon certain property, does not amount to a 
contract for a lien, unless the creditor retains possession of the 
property. 4 

6. It was at one time doubted whether a lien oould exist at 
common law where the parties had specially agreed as to the 
prioe ;* but this doubt was removed by the judgment in Chase 

i In rt LeiLh'a Estate, L. R. 1 P. C. the mag* of their dealing may be anch 

296, 305, per Lord West bury ; Gladstone thai the lair will create a lieD. For in- 

F. Birlev.S Mer. 401,404, per Grant, Mob- stance, the course o£ their dealing maj be 

ter of the Roll* ; Wilson v. Heather, 5 that payment for serricei ia always inmlo 

Taunt. 642, 646 ; Ridgel; v. Iglehart, 8 before the property ia taken away." 
Bland, £40 ; Cumminga v. Harria, 3 Vt. * In rt Leith'a Estate, L. R. 1 P. C. 

244, £3 An. Dec. 206. In the latter case 396. 

Hutchinson, C. J., said; "The usual caaea > Cumminga tr. Harria, 3 Vt. 244, 23 

'in which the law creates a lien are, where Am. Dec 306. 

the person performing services would hare * Roberta v. Jacks, 31 Ark. 597, 25 

no other aure remedy, aj a blacksmith Am. Rep. 5B4 ; Bamett u. Mason, 7 Ark. 

shoeing a horse for a stranger; or a watch- 253; Waddell v. Carlock, 41 Ark. 313. 
maker cleaning a watch for a stranger ; * Brenan b. Cnrrint, Saver, 324 ; Case 

or an innkeeper famishing entertainment of an Hostler, Yelr. 67, note; Stevenson 

for travellers ; and, where the persona ap- ». Blakelock, 1 M. & 3. US. 
plying for those cervices are not strangers, 

4 



3igitiz eC by GOOgk 



DEFINITION AND LIMITATION OF THE SUBJECT. [§ 6. 

v. Westmore, 1 and the rule was there established that such agree- 
ment does not impair the right of lien unless a future time of pay- 
ment is fixed by the parties, or some other stipulation be made 
which is inconsistent with the lien. Lord Ellen borough, deliver- 
ing the judgment of the court in this case, said : " We believe 
the practice of modern times has not proceeded upon any distinc- 
tion between an agreement for a stipulated price and the implied 
contract to pay a reasonable price or sum ; and that the right of 
detainer has been practically acknowledged in both cases alike. 
In the case of Wolf v. Summers, 3 Mr. J. Lawrence does not ap- 
pear to have been aware of any such distinction. It is impossible, 
indeed, to find any solid reason for saying that, if I contract with 
a miller to grind my wheat at 15a. a load, he shall be bound to 
deliver it to me, when ground, without receiving the price of his 
labor ; but that, if I merely deliver it to him to grind, without 
fixing the price, be may detain it until I pay him, though prob- 
ably he would demand, and the law would give him, the very same 
sum. Certainly, if the right of detainer, considered as a right at 
common law, exists only in those cases where there is no manner 
of contract between the parties, except such as the law implies, 
this court cannot extend the rule ; and authorities were quoted to 
establish this proposition ; hot, upon consideration, we are of 
opinion that those authorities are contrary to reason, and to the 
principles of law, and ought not to govern our present decision." 

The learned Chief Justice notices in detail some of the early 
authorities and dicta in which it was held that the fixing of a 
price beforehand defeats the exercise of the right of Hen. 8 But 

1 S If. & 8. 180 (1816). ell v. Simpson, 16 Vn. US. Chief Jus 

1 'i Cumpb. 631. tice Ellen borough, however, in Chase b. 

* In 3 Hoi. Abr. 92, a dictum of Wil- Westmore, SM.4S, 180, suggests that 

llama, J., is quoted in these words : " If Williams, J., above quoted, should be un- 

I pat mj clothes to a tailor to make, he deratuod to •peak of a contract for lime, 

may keep them until satisfaction for the ai well as the amount of payment, and 

making. Bat if I contract with a tailor that tbe authorities built upon his saying 

that he shall have so much for making my are founded on a mistake ; for the earliest 

apparel, he cannot keep them until satis- authority on the subject makes no uia- 

f action for tbe making." See, also, dictum Unction between an implied contract and 

of Lord Holt in Collins d. Ongly, Selw. a contract for fixed price. This authority 

N.P.12S0; and the case of Breuan v. is in the Year Book, Easter Term, 5 Edw- 

Cnrrinl, Bayer, 28*. There ere expree- IV. foL S, b. " Note, also by Haydon, that 

aions in other eases to the effect that a lien an hotter may detain a horse if tbe roaa- 

ia a right accompanying an implied eon- ter will not pay htm for hia eating. Tbe 

tract, as by the Lord Chancellor in Cow- same law is, if a tailor make me a gown, 

6 



* Google 



§§ 7, 8.] LIENS AT COMMON LAV. 

all this is now chiefly interesting as showing the history of the 
doctrine, for since the judgment in Chase v. Westmore it is every- 
where held to be immaterial as regards the lien whether the price 
be fixed by special agreement or not. 1 

7. A lien by express contract supersedes the lien implied 
at common law; s but upon a failure of the owner of the prop- 
erty to comply with the stipulations of the contract, so that a 
lien can arise within its terms, the common law lien may attach. 
Thus, where one agreed to supply to the owner of a sawmill a 
certain quantity of logs to be sawed into boards and transported 
to market at a stipulated price, to be paid upon the delivery of 
specified quantities, and the mill-owner whs to have a lien for the 
price, the other party failed to furnish the specified quantity of 
logs, so that the mill-owner was unable to saw and deliver the 
specified quantity of boards and claim a lien within the terms of 
his contract ; but it was held his common law lien attached to the 
boards in his hands, notwithstanding the special agreement.* 

8. A lien which arises by operation of law may possibly 
override all other rights in the property to which it attaches, 
while a lien which is created by contract or by statute is sub- 
ordinate to all prior existing rights therein. Thus the lien of a 
workman who has repaired a chattel may be superior to an existing 
mortgage upon it.* But a farmer who, under a special contract 

he may keep the gown until be is paid for under sn Implied contract, and afterward* 
bis labor. And the same law ia, if I boy a special contract be made for payment, 
of you a hone for 20*., you may keep tbe in the nature of the thing the one contract 
hone until I pay you the 20*. ; but if I destroys the other. But, a* Lord Ellen- 
am to pay jou at Michaelmas next emu- borough remark* in Chan it. Westmore, 
ing, then yon shall not keep the boras It ia evident that the Lord Chancellor was 
□mil you are paid." speaking of a special contract for a p*r- 

The distinction drawn is where a future ticular mode of payment, — a contract in- 
time of payment is fixed. " If so material consilient with the common law right, 
a distinction n* that which depends upon ' 2 Selwyn's N. P. MO ; Crawshay t>. 
fixing the amount of the price had been Homfray, 4 B. A Aid. 90 ; Sicinman t>. 
supposed to exist at that time, we think," Wilkin*, 7 W. A S. 466 ; Mathiae e. Sel- 
says Lord Ellenborongh, " it would have lers, 86 Pa. St. 486 ; Pinney c. Wells, 10 
been noticed in this place ; and, not being; Conn. 104 ; Hanna v. Phelps, 7 Ind. II. 
noticed, we think it was not then sup- * In re Leith's Estate, L. It. 1 P. C. 
posed to exist." 296. 

In a case so late as 1809 Lord Eldon * Mount d. Williams, 11 Wend. 77. 

speaks of a Hen, except in tbe case of a * § 741; Williams v. Allsap, 10 C. B. 

lien for purchase-money, as primS facie a N. 8. 417; Hammond t>. Danielson, las 

right accompanying the implied contract ; Mas*. 294 ; Scott t>. Delabnnt, 5 Lana. S7S, 

and says that if possession be commenced 69 N. Y. I2B ; Jones on Chat. Mort. { 474. 
6 



,oogl< 



DEFINITION AND LIMITATION OF THE SUBJECT. [§§ 9-11. 

with the owner of horses, has kept and fed them during the win- 
ter, has no lien upon them for the price of keeping as against the 
mortgagee. 1 

9. As a general rule, a person oan create a lien on property 
only to the extent of his interest in it. He need not be the sole 
and absolute owner in order to give a lien upon property : but if 
he has an equitable title with possession, or some legal interest 
with possession, he may create a lien upon such interest as he 
has ; but this lien will not ordinarily affect rights of other part 
owners, or of a mortgagee or other incumbrancer. One who is 
merely a conditional purchaser, so long as the condition on which 
title was to vest in him is not fulfilled, cannot create a Hen on 
the property so as to impair the title of the owner. 1 One who 
has no title to property can confer no lien upon it, either by his 
act or by express contract. 

10. A lien, whether implied or by contract, confers no right 
of property upon the holder. It is neither a jut ad rem nor a 
jut in re. It is neither a right of property in the thing, nor 
a right of action for the thing. It is simply a right of detainer. 4 
" Liens are not founded on property," says Mr. Justice Buller;' 
"but they necessarily suppose the property to be in some other 
person, and not in him who sets up the right." Consequently 
the interest of the lien-holder is not attachable, either as personal 
property or as a chose in action. 

11. A mortgage is sometimes inacourately called a lien. 
"And so it certainly is," says Mr. Justice Story, 7 "and some- 
thing more: it is a transfer of the property itself as security for 
the debt. This must be admitted to be true at law; and it is 
equally true in equity, for in this respect equity follows the law. 
It does not consider the estate of the mortgagee as defeated and 
reduced to a mere lien, but it treats it as a trust estate, and, 

■§5591-683; Biaull v. Pearce, 28 N. » Lickbarrow b. Mason. 6 East, 21, 24. 
T. 352. Notwithstanding an agreement to [ho 
1 Walker r. Bart, 57 Ob. 90. contrary, a lien, or a contract for a lien, 
' Conrown. Little, 41 Hon, 893. transfers no title to the property subject 
* Brace ■>. Marlborough, 2 P. W. 491 ; to the lien. 2 Codea and Stats, of Cali- 
HammoudaD. Barclay, 2 East, 227, 235; fornix, 1885, § 288B of Civ. Code; Da- 
Peek D. Jeuocsa, 7 How. 612, 620, per kola Codea, 1 383. S "06 of Civ. Code. 
Drier, J.; Moanj o. Head, 1 Mason, 319, * Meany ». Head, 1 Mason, 819; Jacob* 
per Story, J.; Ex parte Foster, 2 Story, ti. Kiiapp, 50 N. H, 71. 
131, 147, per Story, J. ; Jacobs v. Knapp, T Conard v. Atlantic Ids. Co. 1 Pet. 386, 
.50 N. H. 71. 441. 



3igitiz eC by GOOgk 



§§ 12, 18.] LIENS AT COMMON LAW. 

according to the intention of the parties, as a qualified estate, and 
security. When the debt is discharged, there is a resulting trust 
for the mortgagor. It is therefore only in a loose and general 
sense that it is sometimes called a lien, and then only by way of 
contrast to an estate absolute and indefeasible." 

In like manner we speak of the lien of a pledge. But a pledge 
is also a lien and something more. It is a deposit by a debtor of 
personal property by way of security, with an implied power in 
the creditor to sell it upon default. But a lien-holder has no 
power of sale, and except as authorized by statute be cannot at 
law enforce his lien. He can only hold possession of the prop- 
erty. 1 

12. An attachment on mesne process does not consti- 
tute a lien in any proper legal sense of the terra. Though an 
attachment is sometimes spoken of as a lien, the term is then 
used only in a general sense, by way of analogy and illustration. 
"An attachment," says Judge Story, 3 " doee not come up to the 
exact definition or meaning of a lien, either in the general sense 
of the common law, or in that of the maritime law, or in that of 
equity jurisprudence. Not in that of the common law, because 
the creditor is not in possession of the property : but it is in eut- 
todid legit, if personal property ; if real property, it is not a fixed 
and vested charge, but it is a contingent, conditional charge, until 
the judgment and levy. Not in the sense of the maritime law, 
which does not recognize or enforce any claim as a lien until it 
has become absolute, fixed, and vested. Not in that of equity 
jurisprudence, for there a lien is not a jut in re or -a jut ad rem. 
It is but a charge upon the thing, and then only when it has, in 
like manner, become absolute, fixed, and vested." 

13. Even a judgment does not constitute a lien upon the 
real estate of the debtor. It is only a general charge upon all 
his real estate to be enforced by an execution and levy upon some 
part or the whole of it. It is not a common law lien, for it is 
not supported by possession. It had its origin in the statute of 
2 Westminster, 18 Edw. I., B giving the right to an elegit, 1 though 
a judgment charging the lands of the debtor is called a lien in 
the courts of equity in England, and in the courts of law of many 

1 Jonei on Pledges, || 1, S. ■ St. 1, eh. 18. 

* Ex parte Foster, 3 Story, 131, 143. • Ex pari* Foster, S Story, 131, US. 



3igitiz eC by GOOgk 



SPECIFIC AND GENERAL LIKNS. [§ 14. 

of our States. 1 " Lien apon a judgment is a vague and inaccurate 
expression," said Mr. Justice Erie. 1 

II. Specific and General Lien*. 

• 14. A lien is either specific or general. The former attaches 
to specific property as security for some demand which the cred- 
itor has in respect to that property, such as a demand for the 
unpaid price of work done, or materials furnished in repairing or 
constructing a specific chattel. The code of California 8 declares 
that a special lien is one which the holder thereof can enforce 
only as security for the performance of a particular act or obliga- 
tion, and of such obligations as may be incidental thereto. 

A specific lien may arise by implication of law, by usage of 
trade, by the contract of the parties, or by statute. This implied 
lien, was doubtless the first in the order of development in Eng- 
lish jurisprudence ; and in this country it was adopted as a part 
of the common law. " It is not to be doubted," said Chief Jus- 
tice Gibson of Pennsylvania, 4 " that the law of particular or spe- 
cific lien on goods in the hands of a tradesman or artisan for the 
price of work done on them, though there is no trace of its recog- 
nition in our own books, was brought hither by our ancestors, and 
that it is a part of our common law. It was as proper for their 
condition and circumstances here as it bad been in the parent 
land ; and though a general lien for an entire balance of accounts 
was said by Lord Ellen borough 6 to be an encroachment on the 
common law, yet it has never been intimated that a particular 
lien on specific chattels'for the price of labor bestowed on them 
does not grow necessarily and naturally oat of the transactions of 
mankind as a matter of public policy. Originally the remedy by 
retainer seems to have been only coextensive with the workman's 
obligation to receive the goods ; a limitation of it which would, 
perhaps, be inconsistent with its existence here, for we have no 
instance of a mechanic being compelled to do jobs for another. 
But even the more recent British decisions have extended it to 

> Peek v. Jenneu, 7 How. 61 8, 630, per * Mlntyie p. Carver, 3 Watta & S.S92, 

Grier, J.; Waller v. Beat, 3 How. Ill; 395, 37 Am. Dec. BIS. 

DoaUee e. Fal«, 5 N. H. 537 ; Kitlredge * RusMorth «■ Hadfleld, 7 Bail, 3S4, 

r. Bellow*, 7 N. II. 899, 428. 239. So north Dakota and South Dakota : 

* BrunsdoD v. Allard, 8 E. & E. 17. Pub. Code of Dak. ) 1 700. 
1 Ciril Code, S 9879. Comp. Stati. J 3398. 



3igitiz eC by GOOgle 



§§ 15, 16.] LIENS AT COMMON LAW. 

the case of every bailee who has, by his labor or skill, conferred 
value on the thing bailed to him." 

The principal specific or particular liens upon personal property 
at common law are those of Mechanics and Artisans, of Innkeep- 
ers, of Carriers, of Sellers or Vendors, and of Landlords under 
the process of distress. 1 

15. A lien expressly or impliedly limited to a particular 
debt will not be extended to cover another debt, except by ex- 
press agreement or plain intention of the parties. 1 Thus, where 
certain dyers who had a lien on goods dyed by them for the price 
of the dyeing of the same, also claimed a lien upon tbein for 
other goods dyed and returned by them at a prior time, it was 
held that the lien could not be thus extended, because it was to 
be inferred from the manner of dealing between the parties that 
the dyers relied upon the personal credit of the owners of. the 
goods for the price of dyeing those which had been returned.* 

One who has a specific lien upon property cannot retain it for 
the payment of other debts due him by the owner without a spe- 
cial agreement to that effect.* 

16. Bpsoiflo liens have always been favored by the courts. 
Lord Mansfield, in a case where he was obliged to decide against 
a general lien, said : 6 " The convenience of commerce, and natu- 
ral justice, are on the side of liens; and therefore, of late years, 
courts lean that way." In a later case Chief Justice Best said :* 
" Ab between debtor and creditor, the doctrine of lien is so equita- 
ble that it cannot be favored too much." 

Similar declarations have been made by the courts in this coun- 
try. Thus, in the Court of Appeals of Maryland, Chief Justice 
Dcrseysaid: 1 " The doctrine of lien is more favored now than 
formerly; and it is now recognized as a general principle, that 
wherever the party has, by his labor or skill, improved the value 
of property placed in his possession, he has a lien upon it until 
paid. And liens have been implied when, from the nature of the 
transaction, the owner of the property is assumed as having de- 
signed to create them, or where it can be fairly inferred, from cir- 

1 Sec the chapters on these lien*. * Ki:van e. Ronp, S Iowa, 307. 

1 Jurvia ■>. Rogen, 15 Masa. 389, 394, ' Green r>. Farmer, 4 Ban. SI 14, SU1, 

per Wilde, J. ; Walker ■>. Birch, 6 T. K. 1 W. Black. Ii. 651. 
S5S. * Jacob* v. Latour, 5 Bing. 13a 

■ Green o. Fanner, 4 Burr. saw. ' Wilson v. Guy ton, 8 Gill, 113. 

10 



3igitiz eC by GOOgle 



SPECIFIC AND GENERAL LIENS. [§§ 17, 18. 

cumstanceB, that it was the understanding of the parties that they 
should exist. The existence of liens has also been sustained where 
they contributed to promote public policy and convenience." 

17. A general lien is one which the holder thereof is entitled 
to enforce as a security for the performance of all the obligations, 
or all of a particular class of obligations, which exist in his favor 
against the owner of the property. 1 A general lien is one which 
does not necessarily arise from some demand which the creditor 
has in respect to the property upon which the lien is claimed, but 
is one for a general balance of accounts. A general lien may ex- 
ist : 1, where there is an express contract ; 2, where it is implied 
from the usage of trade ; 3, from the manner of dealing between 
the parties in the particular case ; 4, or where the defendant has 
acted as a factor. 1 Lord Mansfield made this statement of the 
general rule of law in a case where he decided that a dyer had no 
lien on goods delivered to him in the course of trade, except for 
the price of the dyeing, because there was no express contract to 
give a lien for a general balance, and none could be inferred from 
any usage of trade or manner of dealing between the parties; 
but on the contrary the manner of dealing showed that the dyer 
relied solely upon the personal credit of the owner. 

The principal general liens are those of Factors and Brokers, 
of Bankers, of Attorneys upon their clients' papers and money, 
and of Warehousemen and Wharfingers.* 

18. A lien for a general balance may arise by agreement of 
parties, or by a usage which implies an agreement. In 1788 
certain dyers, bleachers, and others, in Manchester, at a public 
meeting, agreed not to receive goods to be dyed or bleached, ex- 
cept npon the condition that they should respectively have a lien 
upon them, not only for work done upon the particular goods, but 
also for a general balance of account. In trover, by the assignee 
of a bankrupt, for a quantity of yarn winch the owner, with no- 
tice of this agreement, delivered to a bleacher, it was held that 
the latter had the right to hold the yarn for a general balance of 
account due him from the bankrupt. 1 It was contended that 

1 California Cir. Code, § S874 ; Dakota "We are DO* desired to abrogate an 

Cir. Code, j 1600. agreement which the parties themselves 

1 Green v. Former, 4 Bnrr. 2214, 2221. hare nude, and which the courts have said 

1 Sea the chapter! on these several that justice require*; and it ii laid that 

topics. unless we do so, the innkeepers will enter 

* Kirkntoo v. Sbawcrosa, 6 T. B. 14. into iimuar resolutions. But their case it 

u 



jipismb, Google 



§§ 19, 20.] LIENS AT COMMON LAV. 

though one individual might impose such an agreement upon his 
customers, it was not competent for a class of men to do so. But 
Lord Ken yon said : " It seems to me that that is a distinction 
without a difference; there is no reason why a body of persons 
should not make such an agreement as (it is admitted) the de- 
fendant himself might have made." And Lawrence, J., upon this 
point said : " The question here is, whether an agreement, which 
is on the side of natural justice, be or be not illegal, it having been 
made by a number of persons. But I cannot say that it is illegal 
when it is supported on such a foundation ; and if it is not illegal, 
it must be binding upon the parties." 

19. General liena are regarded by courts of law with jeal- 
ousy. Lord Ellenborough, speaking of such lienB in a, case where 
it was sought to establish liens for carriers for a general balance 
of account by force of usage, said : 1 " Tbey are encroachments 
upon the common law. If they are encouraged, the practice will 
be continually extending to other traders and other matters. The 
farrter will be claiming a lien upon a horse sent to him to be 
shod. Carriages and other things which require frequent repair 
will be detained on the same claim ; and there is no saying where 
it is to stop. It is not for the convenience of the public that 
these liens should be extended further than they are already 
established by law. But if any particular inconvenience arise in 
the course of trade, the parties may, if they think proper, stipulate 
with their customers for the introduction of such a lien into their 
dealings." 

III. Possession an Essential Element in Liens at Law. 

20. A lien in its proper legal sense imports that one is in 
possession of the property of another, and that he detains it as 
security for some demand which he has in respect of it. "The 
question always is, whether there be a right to retain the goods 
till a given demand shall be satisfied." 2 Alien, therefore, im- 

widely different from the present ; for that these persona had an option either W 

they are bound by law to receive guests work or not, as they pleased." Per Lord 

who cone to their inni, and are also bound Kenyon- 

to protect the property of those guests, 1 Buahforth v. Hadfield, 7 Bast, 824, 

The; have no option either to receive or £29 ; and see unit csae, 6 East, S19. 

reject guests ; therefore I laid it was a x Gladstone e. Birley, 2 Met. 401, 404, 

material circumstance In the present case per Grant, M. R. 
12 



3igitiz eC by GOOgle 



POSSESSION AM ESSENTIAL ELEMENT IN LIENS AT LAW. [§ 21. 

plies : 1, possession by the creditor ; 2, title in the debtor ; 3, * 
debt arising out of the specific property. 

A lien being a right to detain goods until a certain demand in 
respect to them is satisfied, possession is implied in the beginning 
of the lien ; and, as a general rule, a continuance of possession is 
equally implied. Lord Kenyon 1 expressed the general rule when 
be declared that " the right of lien has never been carried farther 
than while the goods remained in possession of the parties claim- 
ing them." M r. Justice Buller * observes that " liens at law exist 
only in cases where the party entitled to them has the possession 
of the goods ; and if he once parts with the possession after the 
lien attaches, the lien is gone." 

21. Possession la essential to create, and essential to pre- 
serve, a lien at common law, 8 and frequently under a lien cre- 
ated by statute as well.* " A lien," said Lord Ellenborongh, 
" is a right to hold ; and how can that be held which was never 
possessed? " B The right begins and ends with possession. It 
attaches only while the property actually remains in possession 
of the creditor. If he suffers it to go out of his possession, he 
cannot regain it by any judicial proceeding. A lien is only a 
mode of enforcing satisfaction by the mere passive holding of the 
creditor. He thus prevents the debtor from deriving any benefit 
from his own until he pays the debt he owes in respect to the 
property. 

As illustrating the necessity of possession to sustain a lien may 
be instanced the case of a trainer of race-horses, who has the ben- 
efit of the general principle that the person exercising care and 
skill in the improvement of a chattel is entitled to a lien for his 
services. But to perfect a lien he must, in accordance with an- 
other general principle, retain exclusive and continuous possession 
of the horse. If by usage or agreement the owner may send the 
horse to run at any race he chooses, and may select the jockey, 
the trainer has no continuing right of possession, and consequently 

1 Sweet v. Pjm, 1 East, 4, approred bj • Ftahell v. Morrie, ST Conn, 547, 

Lord Ellenborongh in AlcCombie «. Da- 18 Atl. Hep. 717; Smith v. Greenup, GO 

Ties, 7 EaM, 7. Mich. 61, 26 N. W. Rep. 832. 

* Lkkbarrow p. Mason, S East, 21, * Hey wood d. Waring, 4 Camp. 391, 
25, n. 295 And aaeWilaon d. Balfour, 2 Camp. 

* Reed p. Asli, S Ner. 116; Clemson v. 679; Bidgely v. Iglebort, 3 Bland, MO, 
Davidson, 5 Binn. 392 ; Stewart v . Flow- 513, per Bland, Co. 

en, 44 Hies. MS, 7 Am. Bep. 707. 

13 



3igitiz eC by GOOgk 



§ 22.] LIENS AT COMMON LAV. 

no Hen. Coleridge, J., in a case involving the question of a train- 
er's lien under such usage or agreement, said : '* Now a good test 
of the existence of such right of possession is to consider in whose 
possession the race-horse is when it is employed in doing that for 
which it has been trained. The evidence showed that the horse, 
during the race, was in the owner's possession, and in his posses- 
sion rightfully and according to usage or contract. The horse, 
before the race, is placed for convenience in the stable of the 
trainer ; bat during the race it is in the care of the jockey nom- 
inated by the owner. It appears, too, that if on any occasion 
the jockey were selected by the trainer, the trainer, pro hde vice, 
would have only the delegated authority of the owner. I think 
it is part of the understanding that the owner shall have the pos- 
session and control of the horse to run at any race. This is quite 
inconsistent with the trainer's continuing right of possession." ' 

22. As between the immediate parties, a ohanffe of pos- 
eession may not defeat the lien. It is only between the claim- 
ant and third persona that continued possession is essential. As 
between the claimant and the owner, possession is by no means 
essential, except when, by surrendering the possession, the claim- 
ant can be fairly understood to have surrendered his lien ; and 
then the question is, not whether he has yielded his possession, 
bat whether he has surrendered his lien. When the lien-holder 
has parted with possession, it is a question for the jury whether 
be lias so far voluntarily parted with the possession as to war- 
rant the conclusion that he intended to abandon his lien. If the 
owner of the property has obtained possession without the know- 
ledge or consent of the lien-holder, the latter is not divested of bia 
lien. The lien would continue in such case after the change of 
possession. 3 

A lien-holder may bo part with the possession as to lose his lien 
with respect to third persons, though not as against the owner of 
the property. Thus, where the owners of a sawmill permitted 
boards, sawed by them at a stipulated price, to be removed from 
their mill-yard to the bank of a canal at the distance of half a 
mile from the mill, it was held that they lost their lien in respect 
to third persons, though not against the owner of the boards, it 

> Forth ■>. Simpson, 13 Q. B. 680, 686. 177 ; Walls ■>. Long, 9 Ind. App, 102, St 
* Allen e. Spenctr, I Edm. Sal. Cm. N. E. Rep. 101. 
14 



3igitiz eC by GOOgk 



POSSESSION AN ESSENTIAL ELEMENT IN LIENS AT LAW. [§§ 28-25. 

being expressly stipulated between the parties that the lien should 
continue notwithstanding the removal. 1 

23. The possession must be rightful. A lien cannot arise 
in favor of a person who has received possession of the property 
for a purpose inconsistent with the notion of a lien. 3 Thus, if be 
has received certificates of stock for the purpose of raising money 
upon them for the owner, he cannot retain tliem for an indebted- 
ness to himself. His possession of the certificates in such case is 
in trust " To create a lien on a chattel, the party claiming it 
must show the just possession of the thing claimed ; and no per- 
son can acquire a lien founded upon his own illegal or fraudulent 
act, or breach of duty : nor can a lien arise where, from the na- 
ture of the contract between the parties, it would be inconsistent 
with the express terms or the clear intent of the contract." * The 
mere fact that a creditor has possession of his debtors goods gives 
him no lien upon them. 4 

24. While possession is essential to a lion at law, the 
possession need not be the actual and direct possession of 
the creditor, but may be that of his agent, servant, or ware- 
house-keeper, acting under his authority.* A lien may be pro- 
tected by placing the 'property in the hands of a third person, 
with notice of the lien, although such person may not be expressly 
the agent of the Hen-holder. 

26. A mechanic who works for another upon the prem- 
ises of the latter acquires no lien upon the articles manufac- 
tured or repaired, because he has no sufficient possession to sup- 
port a lien. One who makes and burns brick upon the land of 
another withont a lease of the land, or other interest than a right 
to enter and make the brick for a stipulated price per thousand, 
has no such possession of the brick as to give him a lien for his 
labor. If the right exists in such case in the absence of any ex- 
press contract, it most rest on tho common law right of mechan- 
ics and artisans to retain property upon which they have bestowed 
labor. For the maintenance of such a Hen possession is essential, 
and the possession must be actual, without relinquishment or 

i McFarland v. Wheeler, 26 Wend. iia v. Roger*, 15 Moss. 389, 4U, per Pw 
467, rtrensiug 10 Wend. 318. ker, C. J. 

* lUndel v. Brawn, 2 How. 406. * Allen d. Spencer, 1 Edm. SeL Cu. 

* Rundtlo. Bruwu.a How. 406, per Mc- 117; McFarland ■>- Wheeler. S6 Wend. 
Kiolej, 1. 467, 474. 

* Allen v. Megguire, 15 M»M. 4B0 ; Jar. 

15 



3igitiz eC by GOOgk 



§ 26.] LIENS AT COMMON LAW. 

abandonment. One who has mcrelya license to nse the brick- 
yard and materials of another for the purpose of making and 
burning brick, in the case mentioned, has no snch possession of 
the yard as will support a lien. His possession of the brick manu- 
factured is only a qualified and mixed possession, which can form 
no valid basis for a lien. 1 

26. A lien at common law belongs strictly to the bailee 
who by contract performs the service for which the lien is 
claimed, and who receives into his custody the thing upon which 
the skill and labor are to be expended. Inasmuch as an exclu- 
sive right to the possession of the thing is the basis of the lien, a 
servant, or laborer, or journeyman, or sub-contractor of such bailee, 
cannot claim to retain the thing for his own services, except as 
Bucb a lien is provided for by statute ; for the possession of the 
laborer or other person employed by the bailee is the possession 
of such bailee. 3 Thus, if the owner of a machine employ a me- 
chanic to make repairs upon it, and the mechanic, without the 
owner's authority, employs another to perform the entire work, 
the latter cannot claim a lien for the work, although he has 
performed the entire work, and claims a lien in accordance with 
the contract with the owner. 

1 King V. Indian Orchard Co. 11 Cosh. c. Carver, 2 W. ft S. 392, 395, per Gibson, 

S81. C. J. ; Wright o. Terry, 13 Fla. 160, a So. 

* Holliugtwortb. p. Dow, 19 Pick. 218; Hop. 6. 
Jacob* b. Knapp, 50 N. H. 71 ; M'Intjro 

16 



3igitiz eC by GOOgk 



CHAPTER II. 



EQUITABLE LIENS. 



I. Arising bj npreat rontrart, 37- I mortgage! or other security, 77- 

4S. 83. 

II. A riling by equitable ajagnmenM, I V. Arising in favor of creditors aud 

49-63. stockholders of corpo ratio ml, 84- 

IIL Arising from advances mads and S3. 

money paid, 63-76. YL The enforcement of equitable liana, 

IV. Arising from agreements to gin I 93-96. 

I. Arising by Express Contract. 

27. In general. — An equitable lien arises either from a writ- 
ten contract which shows an intention to charge some particu- 
lar property with a debt or obligation, or is declared by a conrt 
of equity oat of general considerations of right and justice as 
applied to the relations of the parties and the circumstances of 
their dealings. Equitable liens by contract of the parties are as 
various as are the contracts which parties may make. Equitable 
liens by contract cannot be classified under any of the common 
divisions of equitable liens, and therefore are treated of in the 
present chapter. Of implied equitable liens, those arising by 
orders and assignments, those arising from advances made and 
money paid for others, those arising from agreements to give mort- 
gages, and those arising in favor of creditors and stockholders of 
corporations, are also treated of in the present chapter. Bnt this 
second division of equitable liens, that is, liens implied and de- 
clared by courts of equity from equitable considerations, is neces- 
sarily subdivided into several other distinct subjects, which are so 
well defined and so important that it has seemed best to treat 
of them in several separate chapters of this work. Whether an 
attorney's special lien upon a judgment recovered is purely an 
equitable lien seems to be a matter of dispute, and the nature 
and origin of this lien are discussed in the chapter devoted to it. 1 
1 See C hap let v. 

VOUI. 1 17 



3igitiz eC by GOOgle 



§ 28.] EQUITABLE LIENS. 

Partnership liens, whicb arise from general equitable principles 
applied to the relatione of the parties, are treated in a separate 
chapter ; 1 and so are liens of grantors of real property for pur- 
chase-money, and of vendees for purchase-money paid before ob- 
taining title ; liens of joint owners of real property for repairs 
and improvements made by one for the joint benefit ; liens of 
trustees for improvements which permanently enhance the value 
of the trust property ; and liens of purchasers and others for im- 
provements upon real estate under void contracts of purchase, or 
under parol gifts, or under the erroneous belief that they are the 
real owners of the property. 8 

1 28. Equitable liens do not depend upon possession as do 
liens at law. Possession by the creditor is not essential to his 
acquiring and enforcing a lien. But the other incidents of a lien 
at common law must exist to constitute an equitable lien. In 
courts of equity the term " lien " is used as synonymous with 
a charge or incumbrance upon a thing, where there is neither 
jut in re y nor ad rem, nor possession of the thing. 8 The term 
is applied aa well to charges arising by express engagement of 
the owner of property, and to a duty or intention implied on 
hie part to make the property answerable for a specific debt or 
engagement.* 

Mr. Justice Erie once remarked that " the words equitable lien 
are intensely undefined." B It is necessarily the case that some- 
thing of vaguenesB and uncertainty should attend a doctrine that 
is of such a wide and varied application as is this of equitable 
lien. And yet the principles are as well defined as other equi- 
table principles, and their application to certain well established 
classes of liens is well settled. To apply them to that undefined 
class of liens which arises from the contracts of parties may be 
more difficult, because these liens are as various as are the con- 
tracts, and precedents which exactly apply may not be found. 
This wide application of the doctrine is one element of the im- 
portance of this branch of equity jurisprudence. " There is no 

1 See chapter on Partnership Liens. * Eqnitabla liens anting from the eqni- 

1 See chapteta on these subjects is table circn instance* of the caw ere nn- 

Vol. n. known to the jurisprudence of Peanayl- 

8 Feck n. Jenoess, 7 How. 613, 630, per vania. Cross's Appeal, 97 Pa. St 471 ; 

Grier, J. ; Donald c. Hewitt, 33 Ala. 634, Hepburn v. Snyder, 3 Pa, St. 73. 

73 Am. Dec. 431. > Brnnsdon ». AUarci, 2 E. & E. 19, IT. 
18 



3igitiz eC by GOOgk 



ARISING BT EXPRESS CONTRACT. [§ 29i 

doctrine," says Mr. Pomeroy, 1 " which more strikingly shows the 
difference between the legal and the equitable conceptions of the 
juridical results which flow from the dealings of men with each' 
other from their express or implied undertakings." 

Equitable liens have commonly been regarded as having their 
origin in trusts. Perhaps they are better described as analo- 
gous to trusts. Remedies at law are for the recovery of money. 
Remedies in equity are specific. " Remedies in equity, aa weir 
as at law," Bays Mr. Pomeroy,* " require some primary right 
or interest of the plaintiff which shall be maintained, enforced; 
or redressed thereby. When equity has jurisdiction to enforce 
rights and obligations growing out of an executory contract, this 
equitable theory of remedies cannot be carried ont, unless the 
notion is admitted that the contract creates some right or in- 
terest in or over specific property, which the decree of the court 
can lay hold of, and by means of which the equitable relief can' 
be made efficient. The doctrine of 'equitable liens' supplies 
thie necessary element ; and it was introduced for the sole pur- 
pose of furnishing a ground for the specific remedies which equity 
confers, operating upon particular identified property, instead of* 
the general pecuniary recoveries granted by courts of law. It : 
follows, therefore, that in a large class of executory contracts, ex- 
press and implied, which the law regards as creating no property 
right, nor interest analogous to property, but only a mere per- 
sonal right and obligation, equity recognizes, in addition to the 
personal obligation, a peculiar right over the thing concerning- 
which the contract deals, which it calls a * lien,' and which, thouglf 
not property, is analogous to property, and by means of which' 
the plaintiff is enabled to follow the identical thing, and to en- 
force the defendant's obligation by a remedy which operates 
directly upon that thing. The theory of equitable liens has its' 
ultimate foundation, therefore, in contracts, express or implied, 
which either deal with, or in some manner relate to, specific prop- 
erty, such as a tract of land, particular chattels, or securities, ay 
certain fund, and the like." 

29. An agreement which creates a charge upon specific 

property is in equity an effbotual lien aa between the parties 

without a change of possession, even though void as against 

subsequent purchasers in good faith without notice, and creditor*; 

1 PoDMroj'a Bq. Jar. J 1134. * Pomcroj'* Eq. Jar. § I2S4. 

19 



3igitiz eC by GOOgk 



§ 29.] EQUITABLE LIENS. 

levying executions or attachments ; and if the agreement be fol- 
lowed by a delivery of possession, before the rights of third per- 
sons have intervened, it is good absolutely. 1 

Thus the owner of a tannery, in consideration of money ad- 
vanced by another for the purchase of skins, agreed to tan them 
and place the leather in the hands of his creditor for sale upon 
commission, and that the skins, whether tanned or not, should 
be considered as security for the payment of the money advanced. 
After several months the tanner became financially embarrassed, 
and was also disabled by illness from continuing his business. 
The parties then entered into a new contract whereby the cred- 
itor was to take possession of the tannery and use it with such 
materials as might be necessary to finish the skins and sell them 
as previously agreed. Four days afterwards the debtor filed his 
petition in bankruptcy. The creditor having taken possession of 
the tannery, the debtor's assignee in bankruptcy brought replevin 
for the skins. It was held that the creditor had an equitable 
lien upon them which was binding, not only upon the debtor bat 
upon his assignee, and that the second contract, though m»de in 
contemplation of bankruptcy, was not fraudulent, inasmuch as 
it was made in good faith to secure the benefits of the first con- 
tract, which created a valid charge upon the property. 3 

The court, Mr. Justice Matthews delivering the opinion, said 
in substance that, while it is true that the creditor could not have 
compelled his debtor, by an action at law, to deliver to him the 
possession of his tannery and its contents, and could not have 
recovered possession of the skins, tanned or untanned, by force 
of a legal title ; yet it is equally true that in equity he could, by 
injunction, have prevented the debtor from making any dispo- 
sition of the property inconsistent with his obligations under the 
contract ; and upon proof of his inability or unwillingness to com- 
plete the performance of his agreement, the court would not have 
hesitated, in the exercise of a familiar jurisdiction, to protect the 
interests of the creditor by placing the property in the custody of 
a receiver for preservation, with authority, if such a course seemed 
expedient, in its discretion, to finish the unfinished work, and ulti- 

> HanKlt v. IlKrrieon, 105 U. S. 401 ; S S. E. Hep. 268; Horsy v. Elliott, US 
Gregory 3. Morrii, 96 U. 8. 619 ; Knott r. N. T. 1S4, 23 N. E. Rep. 4T5. 
SbepbenUtowii Msnof. Co. 30 W. Vs. 790, * Htuelt v. Harriioo, 105 D. S. 401. 

20 



3igitiz eC by GOOgle 



ARISIHO BY EXP8ESS CONTRACT. [§§ SO, 31. 

mately, by a sale and distribution of its proceeds, to adjust the 
rights of the parties. 

30. A chargo in the nature of a lien upon real as well as 
personal estate may be created by the express agreement of 
the owner, and it will be enforced in equity, not only against 
snch owner, but also against third persons who are either volun- 
teers, or who take the estate on which the lien is given, with no- 
tice of the stipulation. 1 " Snch au agreement raises a trust which 
binds the estate to which it relates ; and all who take title thereto, 
with notice of snch trust, can be compelled in equity to fulfil it. 
It is obvious that the law gives no remedy by which such a lien 
can be established, and the trust thereby created be declared and 
enforced. Equity furnishes the only means by which the prop- 
erty on which the charge is fastened can be reached and applied 
to the stipulated purpose." 3 

Thus, if the owner of land agrees, in writing, for a valuable 
consideration, to pay to another person a certain sum " out of the 
proceeds of the sale of said lands, if the same shall be sold, or, if 
the lands shall not be sold, and a company shall be formed for 
working the mines thereon," then to convey stock to that amount, 
it being understood and agreed that such amount is to be a charge 
on the estate of the owner, a charge in the nature of a lien upon 
the land is thereby created, which may be enforced in equity 
against all who take title to the lands with notice of the charge.* 

31. To create an equitable lien by agreement, it must ap- 
pear that the parties to it intended to create a charge upon 
the property. 4 Thus a clause in a charter-party, whereby the 
freighter hound the goods to be taken on board for the perform- 
ance of every covenant therein contained, does not give the ship- 
owner any lien in equity on the goods brought home in the ship, 
either for dead freight or for demurrage that became due by vir- 
tue of the provisions of tbe charter-party. The Court of King's 
Bench determined that there was no lien at law. 6 The ground of 

■ Clarke ». Sonthwick, 1 Curtb, 997; 116 N. T. 194, 136, S3 N. E. Rep. 479; 

Horry r. Elliott, 118 N. T. 194, 136. S3 Scott p. McMillan, 76 N. T. 141, 144; 

N. B. Rep. 475, reveriing 91 J. A S. 331 ; Milliman e. Neher, SO Barb. 37. 

Fresno Canal Co. p. Dunbar, 80 Cal. HO, * Pinch e. Anthony, 8 Allan, 536. 

99 Pac. Rep. S7S ; Smith e. Smith, SI * Knott v. Sbepberdatown Manuf. Co. 

Htm, 164, 4 N. Y. Snpp. 669. 30 W. Va. 790, 5 S. E. Sep. 966. 

* Pinch p. Anthony, 8 Allen, 536, par * Birlnj p. Gladstone, 5M.S8. 905. 
Bigelow, C. J. And Me Horej v. Elliott, 

21 



3igitiz eC by GOOgk 



§ 82.] EQUITABLE LIENS. 

the judgment was, not that a lien might not have been con- 
tracted for, bat tLat the clause of the charter-party did not con- 
lain a contract to that effect 

In the subsequent suit in equity, the Master of the Rolls, Sir 
William Grant, delivering the judgment, said: 1 "The plain- 
tiffs, however, suppose that, although a court of law has said that 
the clause does not give them a lien, a court of equity may say 
that it gives them what is precisely tantamount to a lien, namely, 
a right to have their demand satisfied out of the produce of 
the goods in preference to any other creditors of the bankrupt 
freighter. Fatting this clause out of the question, it was not 
contended that equity gives the ship-owner any lien for his 
freight beyond that which the law gives him. There are, to be 
sure, liens which exist only in equity, and of which equity alone 
can take cognizance, but it cannot be contended that a lien for 
ireight is one of them. As to liens on the goods of one man in 
the possession of another, I know of no difference between the 
rules of decision in courts of law and in courts of equity. The 
question that so frequently occurs, whether a tradesman has a 
lien on the goods in his bands for the general balance due to him, 
or only for so much as relates to the particular goods, is decided 
in both courts in the same way, and on the same grounds. To 
extend the lien, the party claiming it must show an agreement 
to that effect, or something from which an agreement may be 
inferred, such as a course of dealing between the parties, or a 
general usage of the trade. Lien, in its proper sense, is a right 
which the law gives. But it is usual to speak of lien by con- 
tract, though that be more in the nature of an agreement for 
a pledge. Taken either way, however, the question always is, 
whether there be a right to detain the goods till a given demand 
shall be satisfied. That right must be derived from law or con- 
tract." 

32. The intention must be to create a lien upon the prop- 
erty, as distinguished from an agreement to apply the pro- 
ceeds of a sale of it to the payment of a debt. A debtor 
verbally agreed that his creditor should have a lien upon a cer- 
tain stock of cattle, and that the cattle should be placed in charge 
ol a third person to hold until they should be in a suitable con- 
dition to be sold. The debtor placed his cattle in charge of his 
i Gladstone v. Birlej, 3 MeriTsle, 401, 403. 
22 



3igitiz eC by GOOgk 



ARISING BT EXPRESS CONTBACT. |_§ S3. 

boiib, as herders, without declaring any Hen or trust upon the 
property, and afterwards died. The creditor sought to charge 
with a lien the fnnds arising from a sale of the cattle by the 
executor. But the court held that the evidence merely showed 
an intention on the part of the debtor to apply the proceeds of 
the property to the payment of his debt to the plaintiff, but that 
there was no lien. 1 

A written agreement made by a eon to his father, whereby the 
Hon undertook to pay a mortgage on the lands of his father, does 
not create a lien upon the son's interest in such lands as heir 
after his father's death, the Agreement showing no intent that 
such a lien should be created. 1 

33. The instrument creating the lien in not effectual un- 
less it plainly designates the property to be charged, 3 though 
only such an identification is required as is essential to an enforce- 
ment of the lien. 1 By a marriage settlement, the husband pro- 
vided for an annuity to his wife in case she should survive him, 
from and after his decease, for her natural life; and for the pay- 
ment of such annuity he did " promise, covenant, and agree that 
the same shall be, and the same is liereby made and constitutes, 
a lien and charge upon all the property and estate, real and per- 
sonal, of every name and nature, kind and description, which he 
may own and to which he may be entitled at the time of his de- 
cease." His estate, though ample at the date of the settlement, 
was insolvent at the time of his decease. In a suit by the widow 
to enforce the lien it was held that the settlement did not create 
an equitable lien, as against the husband's creditors, either upon 
the property which he owned at the time of making the agree- 
ment, or that which he owned at the time of his death, for the 

1 Cook o. Black, M Iowa, 693, 7 N. W. far wool, which he placed on the based 

Rep. 111. premises. Ite retained control of the wool, 

* Hider v. Clark, 54 Iowa, 293, 6 N. W. and rumored or changed it at pleasure. 
Rep. 171. The wool oiled for by the Tarioul receipt* 

1 Barn o. Burn, 3 Yes. Jr. S73 ; Bank was not set apart or marked in any way, 

v. Haaelton, IS Lea, 216; Bank v. Brooks, and tke wool in the store was of different 

49 Lei;. Int. 96; Union Tro>t Co. e. grades, which were not specified in the re- 

Trumbull (III.), 27 N. E. Rep. Si. ceipla. The merchant made an assignment 

* Union Trait Co. e. Trumbull (III.), 37 for the benefit of hit creditor*, and his as 
M. E. Rep. Si. In this case a wool mer- aignee took poesewion of tbe wool. It nl 
cbant leased part of his store to a ware- held that the warehonae company bad no 
house company, who, without taking poa- lien on tbe wools, the receipts being fold 
session, leaned to him warehouse receipts for indcllnitenese and want of possession. 



;y Google 



§ 84.] EQUITABLE LIENS. 

reason that it failed to designate, with sufficient certainty, the 
property to be charged therewith. 1 Mr. Justice Boardman, de- 
livering the opinion of the court, said : " The charge or lien mast 
have taken effect, if at all, at the date of the contract, and most 
plainly designate the property charged. Id the present case that 
was impossible : the property to be charged was not known to 
the contracting parties. The intestate may not have owned it 
It was utterly uncertain what property, if any, he would own at 
his death. The contract could not have been enforced specifically 
as to Buch property in his lifetime, because the court could not 
possibly ascertain the property to be bound by its decree. If the 
property had been then owned by him and described, the equita- 
ble lien would have attached. But it does not appear that the 
property owned by the intestate at his death was owned by him 
twelve years before, when the contract was made. It was wholly 
uncertain whether property owned by him then would remain bis 
at his death. Between the parties to the contract there was no 
obligation to retain it. As to such property the intestate owed no 
duty to the plaintiff. We apprehend this does not constitute 
that degree of certainty in designating the property to be charged 
which the law requires. It is not enough that at some future time 
the descriptions will become certain. It must not be forgotten 
that, as against the party himself, his heirs at law, and those 
claiming under him voluntarily, such an agreement may raise a 
trust which will be enforced in equity. But as to purchasers and 
others, acting in good faith and without notice, a different rule 
applies." 

34. It is essential to an equitable lien that the property 
to be charged should be capable of identification, so that the 
claimant of the lieu may say, with a reasonable degree of cer- 
tainty, what property it is that is subject to his lien. 1 Though 
possession is not necessary to the existence of an equitable lien, 
it is necessary that the property or funds upon which the lien 
is claimed should be distinctly traced, so that the very thing 
which is subject to the special charge may be proceeded against in 
an equitable action, and sold under decree to satisfy the charge. 
A fund is not thus traced when it has gone into the general 
bank account of the recipient, or after it has been mixed with 

1 Mundj v. Muoboti, 40 Hun, 304. * Payne a. Wilson, 74 N. Y. 348. 

24 



3igitiz eC by GOOgk 



ARISING BT EXPRESS COHTBACT. [§ 35. 

funds from other sources. 1 Money which has been intermixed 
with other money cannot be the subject of an equitable lien after 
the money itself, or a specific substitute for it, has become incapa- 
ble of identification. 3 

A firm of merchants famished to a firm of silk manufacturers 
raw materials, for silk goods, and funds to purchase such materials, 
upon an agreement whereby the goods when manufactured were 
to be delivered to and sold by the merchants, who were author- 
ized to deduct from the proceeds of the sales the amount due them 
for advances and insurance and for commissions. Some two years 
afterwards the manufacturers failed, and made a general assign- 
ment of their property. The assignee took possession of the debt- 
ors' stock, among which were nineteen pieces of silk finished, and 
about forty-five pieces unfinished. The merchants claimed an 
equitable lien upon these goods for a balance due them, and 
brought suit to enforce the lien ; but it was held they could not 
recover, because they did not trace their advances to these partic- 
ular goods. 8 

36. An equitable lien is created by an agreement between 
several persons that the cost of certain improvements shall 
be a lien on their respective estates, though these are not im- 
mediately connected with the improvements. Certain mill-owners 
associated themselves for the purpose of building reservoirs, and 
agreed that there should be a lien on their respective estates for 
the share of the expenses which each was to pay. This agree- 
ment was held to create an equitable lien which each member 
who had paid more than his proportion might enforce against 
the property of any other member who had paid less than his 
proportion. 4 Such an agreement is not executory merely, but 
executed. It creates a trust which a court of equity will work 
out so as to secure the payment of the obligations in the manner 
the parties intended they should be paid. The lien is created in 
behalf of each member of the association, and not in behalf of the 
association collectively, because such appears to be the intent of 
the agreement. The covenant is a several covenant of each with 
each member. The other members of the association need not be 
joined in a suit by one member against the purchaser of the prop- 

i Grinncll v. Snydam, 3 Sandf. 132. * Clarke v. Southwick, 1 Curtis, J97. 

* DraVe d. Taylor, 6 Blstchf. 14. And sea Campbell v. Meuier, 4 John*. 

1 Pom u. Oberunflar, 59 How. Pr. 339. Ch. 334, 8 Am. Dec. B70. 
25 



;y Google 



§ 36.] EQUITABLE LIENS. 

arty of another for contribution, because the others have no inter- 
est in the suit. 1 Mr. Justice Curtis, delivering judgment, said : — 

" If there was any property of this association capable of be- 
ing applied, and which equitably ought to be applied, in pay- 
ment of its debts, before resorting to the lien asserted by the 
bill, all the members would be necessary parties, because they 
would then have an interest both in the account of the debts 
and of the property, and in its application. But there is no such 
property. The works which the association has erected for the 
improvement of these mills cannot be sold without defeating the 
very object for which the association was formed. Every member 
has a right to have them preserved, and to have every other 
member pay his contributory share, in order that they may be 
preserved. So far from these works constituting a fund to be 
resorted to in relief of the contributors, they are the very object 
of the contribution, and equity requires it to be made in order 
that the original purposes of the parties may be fulfilled. It is 
objected that the defendant may hereafter, by other suits, have 
other debts of the association charged on his estates, so that he 
is exposed to pay more than iiis just share, and thus be forced 
to seek for contribution himself in another suit. If this were so, 
it would be a fatal objection ; bat the defendant, not being a 
member of the association, and so not being personally liable, 
can never be forced to pay any more than three sixths of any 
debt, and bo can never have any claim for contribution ; for this 
proportion is what is justly and ultimately chargeable on his 
estates." 

36. An equitable lien may be imposed upon a changing 
Btook of goods by agreement of the parties. Persons who have 
been induced to execute a bond to release an attachment on a 
stock of goods belonging to a business firm, upon a promise that 
the goods so released shall be held for the obligors' indemnity and 
security, have an equitable lien on such stock of goods for the 
amount they have been compelled to pay by reason of having 
executed such bond ; and such lien may be enforced as against 
the general assignee of the firm for the benefit of their creditors. 1 
The fact that it was agreed that the owners of the stock of goods 
should keep it replenished up to its value at that time, and the 

1 Clarke e. South wick, l Curtii, 397, ■ Arnold it. Morriit, 7 Daly, IBS. 
per Curtis, J. 

26 



jipismb, Google 



ARISING BY EXPRESS CONTRACT. [§§ 37, 38. 

further fact that, without the knowledge or consent of the obli- 
gors, the owners disposed of parte of the stock and put in other 
stock to supply its place, do not affect the lien ; but this will 
attach to the mingled goods in the condition they are in at the • 
time the Hen is enforced. 1 

37. An equitable lien is distinguished from a trust in this 
respect. A bank which receives a draft for collection holds the 
proceeds when collected as trustee of the depositor, and upon the 
failure of the bank the depositor is entitled to have the amount 
paid by a receiver of the bank's property in preference to the 
general creditors. The receiver of the bank takes its assets sub- 
ject to the same equities under which the bank held them. It 
is immaterial whether the identical moneys collected by the bank 
passed into the hands of the receiver or not, for in some shape 
they went to swell the assets which fell into the receiver 's hands. 3 
" It is not to be supposed the trust fund was dissipated and lost 
altogether, and did not fall into the mass of the assignor's prop- 
erty ; and the rule in equity is well established that, so long as 
the trust property can be traced and followed into other prop- 
erty into which it has been converted, that remains subject to 
the trust : ... we do not understand that it is necessary to trace 
the trust fund into some specific property in order to enforce the 
trust. If it can be traced into the estate of the defaulting agent 
or trustee, this is sufficient." 8 

The discussion of this matter is not followed farther, because 
the principle involved is one of trust rather than lien. A lien is 
a charge on some specific thing, as lands, goods, or bonds ; but a 
trust may exist with reference to any funds or a mere credit. 

38. An equitable lien under an agreement of the parties 
arises only when the terms and conditions contemplated by 
the agreement are fulfilled. A contractor about to furnish cer- 
tain manufactured articles to the government agreed that advances 
to be made him by a bank, to enable him to carry out bis con- 
tract, should be a lien on the drafts to be drawn by him on the 
government for the proceeds of the articles manufactured. The 

1 Arnold r. Morrii, 7 Daly, 498. 1ST; Peak t>. Ellicott, 30 Kans. Ififi, 4* 

' People a. Bank of DiuuriHe, 39 Hnn, Am. Rep. SO, 1 Pie. Hep. 499. 

1ST ; People v. Citj Bank of Rochester, * Per Cole, C. J., in McLeod r. Evani, 

96H.T. 3!) VanAienc. Aid. Nat. Bank, 66 Wia. 401, 46 Am. Bep. 90, 98 N. W. 

» N. Y. 1 ; McLeod v. E.™, G6 Wis. Hep. 173, 114. 

401, SB N. W. Rep. 173, S14, 57 Am. Bep. 

2T 



;y Google 



§ 89.] EQUITABLE LIENS. 

government afterwards annulled tbe contract, the contractor being 
at the time largely indebted to the bank for advances made. The 
contractor many years afterwards recovered a judgment in the 
Court of Claims against the government for a violation of the con- 
tract. It was held that the bank had no lien on this judgment 
The lien, by its terms, only attached to the proceeds of sales 
of the manufactured goods. There was no lien on the contract 
itself ; and there could be none on the damages for a breach of 
the contract. 1 

39. It is sometimes declared to be a general doctrine of 
equity that a lien will be given when the plaintiff's rights 
can be secured in no other way. This doctrine was asserted in 
a recent case by tbe Court of Appeals of New York. 1 The plain- 
tiff was chairman of a committee appointed by a convention of the 
Episcopal Church to procure a residence for the bishop of tbe Dio- 
cese of Albany. With tbe advice of the bishop and consent of 
the committee, he purchased certain premises, and, at tbe request 
of the bishop, commenced making necessary repairs and improve- 
ments. The committee reported to the convention at its annual 
meeting, which adopted a resolution directing a transfer of the 
title to the defendant, and requiring (he latter to execute a bond 
and mortgage to secure the payment of an existing mortgage and 
of the sum advanced for repairs. At this time the repairs were in 
progress, and the plaintiff went on and completed the work, ad- 
vancing the money required for the purpose. The premises were 
conveyed to the defendant, which executed a mortgage, and ap- 
plied the moneys obtained upon it as directed, but tbey were in- 
sufficient to pay the whole amount advanced by tbe plaintiff. The 
plaintiff, having completed the repairs, demanded payment of the 
balance due him, and, upon the defendants' refusal to reimburse 
him, brought an action for equitable relief, asking to have a lien 
in the nature of a mortgage declared upon the property, and that 
he be allowed to foreclose the same. It was held that he was 
entitled to this relief, ae bis rights could be secured in no other 
way. Judge Danforth, delivering the judgment of the court, 
said ; "The advances were directly for the benefit of the real es- 
tate ; tbey were approved by the convention by whose directions 

1 Bank of Washington v. Nock, 9 Wall. * Perry v. Board of Mission*, 103 N. T. 
373 ; and aee Kelly e. Kelly, A Mich. 30, 99, 1 N. Y. St.. Rep. 169. 
19N-W.Bep.SS0. 

28 



3igitiz eC by GOOgle 



ARISING BT EXPBESS CONTRACT. [§§ 40, 41. 

the title wn« conveyed to the defendant : but neither the conven- 
tion nor the defendant have incurred any corporate liability ; and, 
while it may be aaid that the advances were made on the promise 
of, or in the just and natural expectation that, a mortgage would 
be given, it is also true that they were made on the credit of 
the property for the improvement of which they were expended. 
The repairs and improvements were permanently beneficial to it, 
made in good faith, with the knowledge and approbation of the 
parties interested, and accepted by them, not as a gratuity, but as 
services for which compensation should be given. The plaintiffs 
right to remuneration is clear ; and, unless the remedy sought for 
in this action is given, there will be a total failure of justice." 

40. Upon a sale of real and personal property together 
for one prioe, a lien for the purchase-money reserved in the 
conveyance will be enforoed in a court of equity, both upon 
the real and upon the personal property. Thus, where a lease of 
certain coal property, with all the personal property of the lessee 
upon the demised premises, was sold and transferred for a gross* 
sum for both, and in the instrument of transfer a lien was re- 
served for the payment of the purchase-money, the lien was de- 
clared to be valid as between tbe parties and as against tlioso 
having actual notice of it, and was enforced by a sale of both the 
real and personal property. 1 Of course there is no implied equi- 
table Hen for purchase-money in favor of a vendor of personal prop- 
erty ; a but there is no reason why the Hen should not exist by 
contract or reservation, or why a lien upon both real and personal 
property, reserved by tbe same contract, should not be enforced 
against all the property. 

41. An equitable lien arises from a conditional delivery of 
goods upon a sale, the condition being that the goods shall be 
paid for before the title passes. Thus, where goods were sold at 
auction to be paid for in approved indorsed notes, and, in accord- 
ance with a usage, the goods were delivered to the buyer when 
called for, the notes being left for subsequent adjustment, and, be- 
fore the notes were delivered, the purchaser stopped payment and 
assigned the goods so bought, with other property, for tbe benefit 

* Cole r. Smith, M W. Va. 1ST, ISO. prr Lee, J, j June* e. Bird, S Leigh, SIO, 
1 Lupin v. Marie, G Wend. T7, SI Am. 31 Am. Dec «8; Beam v. Blauton, 3 

Dec 1M ; Cole r. Smiih, 24 W. Va. 287 ; bed. Bq. 59. 

SlcCaudUth p. Keen, 13 GialL 615, Ms, 

29 



3igitiz eC by GOOgle 



§ 42.] EQUITABLE LIKNS, 

of bis creditors, it was held that the vendee was a trustee for the 
goods until the notes should be delivered ; that the vendor had 
an equitable lien upon them for the purchase-money, and a better 
right than the voluntary assignee. 1 

One may have an equitable lien upon a boat for work and 
material furnished nnder an agreement for such a lien. Thus, 
where one bnilt and put up an engine in a boat under an express 
contract with the owner that he should have a lien upon the boat 
for tlie price of the engine, it was held that he had an equitable 
lien upon the boat, not dependent for its validity upon his retain- 
ing possession. 3 

42. There may be an equitable lien upon future property- 1 
Whenever a positive lien or charge is intended to be created 
upon real or personal property not in existence, or not owned by 
the person who grants the lien, the contract attaches in equity 
as a Hen or charge upon the particular property as soon as he ac- 
quires title and possession of the same. 4 An equitable lien upon 
future property may be even more effectual than such a lien upon 
property in existence, for the registration laws apply to liens 
upon property in existence, but not to liens upon future property. 
Therefore it happens that, while, as against creditors, a lien can- 
not be created by contract upon a personal chattel in existence 
at the time of such contract without registration, yet, as this rule 
does not apply to a contract in regard to future property, a lien 
effectual as against creditors may be created by agreement upon 
future property, such, for instance, as the products of a farm, or 
the profits of the farm, not then in existence." 

i Haggerty v. Palmer, 6 Johns. Ch. A Hen may be created by contract, to 

437. take immediate effect, M security for (be 

1 Donald r. Hewitt, 33 Ala. .134, 73 performance of obligations not then in ex- 
Am. Dec. 431. istence. California Cii. Code, § 8884 ; 

' Under the Codei of California, Horti Dakota Cir. Coda, 5 1T05. 

Dakota, and South Dakota, an agreement * Wiener n. Ocurapaugh, 71 N. Y. 113; 

may be made to create a lien npoo prop- Coatea v. Donnell, 16 J.* 8.46; Barnard 

arty not yet acquired by tba party agree- t>. Norwich & Worcester II. R. Co. 4 Clin*. 

ingtogi»e the lien, or not yet in existence. 351; Cue o. Hart, 6 Am. L. Beg. 27; 

In inch case the lien agreed for at laches Kirkaey v. Means, 43 Ala. 416 ; Bibend e. 

from the time when the party agreeing: to Liverpool & London F. * L. Ina. Co. 30 

give it acquires an interest in the thing Cal. 78. 

tpjiha extent of aach interest. California 6 Jonea on Chattel Mortgagee, j 1ST ; 

C'it. Code, £ 288a ; Dakota Cir. Code, Tedford t>. Wilson, 3 Head, 31 1. 
(1704. 



3igitiz eC by GOOgle 



ABISINd BT KQUITABLB AS3IGNKKNT8. [§§ 43, 44. 

II. Arising by Equitable Attignment*. 
43. An equitable lien arises from an order given by a 
debtor to his oreditor to receive payment oat of a particu- 
lar fond, and this ia effectual from the time the creditor receives 
the order or assignment, though the debtor become bankrupt be- 
fore the order is received by the drawee. Thus, a merchant at 
Liverpool, having property in the hands of an agent at Bahia, 
agreed with a creditor to apply such property to the discharge of 
his indebtedness to him, and sect directions to his agent to con- 
vert the property and apply the proceeds to that purpose ; but, be- 
fore such instructions could reach his agent, he became bankrupt. 1 
The chancellor, Lord Cottenham, held that, notwithstanding the 
assignment by the bankrupt, the creditor had an interest in the 
goods, in the nature of a lien, which equity would protect. He 
/tated the rule to be that, in equity, an order given by a debtor 
to bis creditor upon a third person having funds of the debtor, to 
pay the creditor out of the same, is a binding, equitable assign- 
ment of so much of the funds. 

A part of a particular fund may thus be assigned by an order, 
and the holder may enforce payment against the drawee. No 
particular form of words is necessary to effect an equitable as- 
signment. Any words which show an intention of transferring 
or appropriating a chose in action to the use of the assignee, and 
which place him in control of the same, are sufficient. 3 

44. This rule applies to agreements made by attorneys 
with their clients, whereby they are to receive a share of the 
fond to be recovered as a contingent compensation for profes- 

1 Bam b. Carvslbo, 4 Mylnc & Cr.690. ait, 2 Sim. 333, S Ban. 4 Mjlne, 497 ; 
In Ex parte South, 3 Swan&t. 393, Lord Lett v. Morris, 4 Sim. 607 ; Watson d. 
Eldon njri : " It hat been decided in bank- Wellington, 1 Rusa. & My lne, 602, 605 ; 
ruptcy that, if i creditor gives an order on Malcolm D. Scott, 3 Hue, 39 ; Crowfoot 
nil debtor to pay a mm in discharge of hii v. Guraey, £ Moo. & Scott, 473 ; Bow c. 
debt, MS thai order ia shown to the debtor, Dawson, 1 Vea. Sr. 333, par Lord Hard- 
it biniis him. On the other hand, this wicke ; Teatel v. Groves, I Vea. Jr. 280, 
doctrine has been brought into doubt bj per Lord Thurlow ; Trint v. Child, St 
■ome decisions in the court* of law which Wall. 441, 447, per Swayne, J. ; Field v. 
require that the party receiving; the order Mayor of Mew York, 6 N. T. 179, 57 Am. 
should, in some way, enter into a contract. Dec. 435 ; Bichardaon v. Rust, 9 Paige, 
That has heen ibe count of their deci- 213 ; Powell v, Jones, 7a Ala. 392. 
•ion*, but is certainly not the doctrine of * How u. Dawson, 1 Vea. Sr. 333, per 
ihit court." See, al»o, Fiugerald B . Stew- Lord Hardwkke. 

SI 



3igitiz eC by GOOgle 



§ 45.] EQUITABLE LIENS. 

sional services, for Bach agreements, when made for the prosecu- 
tion of certain classes of claims, of which may be instanced 
claims against a government, or in one of the executive depart- 
ments of a government, are not in violation of public policy. 1 
Such agreements, if they virtually assign a part of the claim, or 
an interest in it, create a lien upon the fund recovered. 9 Tims, 
where professional services were rendered by an attorney under 
bucIi an agreement, in prosecuting a claim against the Republic 
of Mexico, and the claim was finally, through his efforts, allowed, 
it was held that he bad a lien upon the fund recovered, and that 
a court of equity would exercise jurisdiction to enforce the lien, 
if it appeared that equity would give lnm a more adequate rem- 
edy tlian be could obtain in a court of law. 8 

46. An order upon a specific fund, of which the drawee 
baa notice, though he has not accepted it, or though he may 
have refused to accept it, is effectual, not only as between the 
parties, but also as against the drawer's assignee in bankruptcy, 
or bis voluntary asaignee, for the benefit of his creditors. 4 A 
debtor, being about to sell some leasehold property, gave to a 
creditor an order for the payment of the purchase-money. The 
order was not accepted, though the drawees bad notice of it. 
Before the transaction was completed by payment of the order, 
the debtor became bankrupt. Lord Thurlow, in holding that 
the order was an equitable assignment of the purchase-money, 
said : '' " This is nothing but a direction by a man to pay part of 

> Stanton p. Embrey, SS U. 8. 648; actions were deposited wilb a trustee, and 

Fairbanks B. Sargent, 39 Hun, SS8 ; Wil- thereafter the. amount of counsel '» foe wai 

liams o. IngersoU, S3 Ban, 284 ; Brown adjusted bj agreement between him and 

v. Major, 11 Hun, 21. the attorney. It was held, in an action 

1 Stanton v. Embrey, 93 U. S. 348 ; by counsel againut tbe attorney and the 

Dowell v. Card well, 4 Sawyer, SIT. trustee, that the agreement for a contin- 

1 Wylie p. Coxe, IS How. 415; Stanton gent fee impressed an equitable lien for 

v. Embrey, 83 U. S. 548. Where the plaintiff's compensation npon the trust 

amount of compensation to be paid the fnnd, and that a Judgment for the same, 

attorney in anchcase is not Bxed, evidence a* adjusted, effectuated the lien. Har- 

of what is ordinarily charged by attorneys wood v. La Orange, 16 N. T. Sapp. 689. 

in ceaes of the same character Is admls- * Ex parte Alderson, 1 Mad. 53, af- 

eible. Armed nam. Ex parte South, 3 Swanst. 

An attorney, prosecuting certaiu actions 393; Lett v. Morris, 4 Sim. 607; Burn b. 

under an agreement that his fees should Carralho, 4 Mylne 4 Cr. 690 ; Yeatet ■>. 

be a proportionate than of the recovery. Groves, 1 Vei. Jr. 381 ; Clark ■>. Mauraa, 

employed counsel, and agreed to divide 3 Paige, S73. 

the fees with bin. Tbe proceed* of tbe * Teates p. Groves, 1 Tea. Jr. 981. 



agitizeo by GOOgle 



ARISING BV EQUITABLE ASSIGNMENTS. [§§ 46-48. 

his money to another for a foregone valuable consideration. If 
he ooold transfer, he has done it ; and, it being his own money, 
he could transfer. The transfer was actually made. They were 
right not to accept it, as it was not a bill of exchange. It is not 
an inchoate business. The order fixed the money the moment it 
was shown to the parties upon whom it was drawn." 

The assignment of a mail contract, accompanied by an agree- 
ment that the assignee should receive all the moneys that might 
become payable under the contract for carrying the mail, consti- 
tutes an equitable lien on the funds which is superior to a subse- 
quent order given by the assignor upon the same fund. 1 

46. But the assignment is not effectual until the creditor 
is notified of the assignment to himself. Though a consign- 
ment be made with directions to apply the proceeds to a creditor 
of the consignor, that is no effectual appropriation or Hen in favor 
of the creditor until the creditor is notified of the appropriation. 
Until such notice the directions amount to no more than a man- 
date revocable at the pleasure of the consignor, who may make 
any disposition of the property or of its proceeds that be may see 
fit to make. 1 

47. An order which amounts to an equitable assignment 
cannot be revoked. An order given by a landlord on his tenant 
to pay to another the rents to accrue during a certain time, and 
assented to by the tenant, operates as an equitable assignment of 
such rents, which is effectual not only as against third persons, 
but also against the landlord himself. 8 Although he revokes the 
order, the tenant is not only justified in paying the rents in 
accordance with the order, but may be compelled to do so. The 
order itself amounts to an assignment of the fund without any 
formal acceptance, whether written or verbal. 1 Such an order 
differs in this respect from a bill of exchange or check, inasmuch 
as these do not specify a particular fund, whereas the order men- 
tioned does specify a particular fund. 

48. A mere agreement, whether by parol or in writing, to 
pay a debt out of a designated fund, when received, does not 
give an equitable lien upon that fund, or operate as an equitable 

> Bradfer »■ Rom, S Paige, SIS. * Lett i>. Uorrit, 4 Sim. 607 ; Ycaut v. 

1 Sam v. Porcbar, a Her. 653. Groroa, t Ve». Jr. 3S0 ; Ex pari* Alder- 

1 Morion v. Nylor, 1 Hill, SSS ; Brad- sou, 1 Mad. S3. 
fey* Boot, 5 Paige, 634. 



■j, Google 



§ 48.] EQUITABLE LIENS. 

assignment of it. 1 The agreement is personal merely. There 
must; be an order, or something that places the creditor in a posi- 
tion to demand and receive the amount of the debt from the 
holder of the fund without further action on the part of the 
debtor ; something that would protect the bolder of the fund in 
making the payment. A covenant by a debtor to pay certain 
debts ont of a particular fund, when the same should be received,' 
is merely a personal covenant. 2 Thus, to create in favor of a 
contractor a lien upon particular funds of his employer, there 
must be not only an express promise of the employer npon which 
the contractor relies, to apply them in payment of such services, 
but there must be some act of appropriation on the part of the 
employer relinquishing control of the funds, and conferring npon 
the contractor the right to have them thus applied when the ser- 
vices are rendered. A contractor entered into an agreement with 
a railroad company to build a portion of its road, which bad just 
been mortgaged by the company to raise money to pay its exist- 
ing debts and to complete and equip the road. The mortgage 
provided, among other things, that the expenditure of all Bums 
of money realized from the sale of the bonds should be made 
with the approval of at least one of the mortgage trustees, and 
that his assent in writing should be necessary to all contracts 
made by the company before the same should be a charge upon 
any of the sums received from such sales. The contractor ob- 
tained the assent of two of the trustees to his contract ; and, hav- 
ing completed the work, upon the bankruptcy of the company 
claimed a lien upon the property in the hands of the assignees 
in bankruptcy acquired or received from the mortgage bonds. 
It was held, however, that he acquired no lien, because he was 
never given control of the funds to be received from the bonds. 8 
Upon this point Mr. Justice Field said : " Before there can arise 
any lien on the funds of the employer, there must be, in ad- 
dition to such express promise upon which the contractor relies, 
some act of appropriation on the part of the employer depriv- 
ing himself of the control of the funds, and conferring upon 

1 Wright t>. Ellison, 1 Wall. 1ft ; Chriit- Najtor, 1 Hill, S83 ; Hanselt v. Vilowur, 1 

maa v. Rua-eli, 14 Wall. 69; Trtat ». Abb. N. CMS. affirmed 76 N. T. 630; 

Child, SI Wall, 441 ; Dillon o. Barnard, Wood v. Mitchell, IT H. Y. Snpp. 788. 

SI Willi. 430; Williama ■>. Ingrnol], 89 * Rogtra v. Housed, 18 Wend. Ill; 

N. T. 508; Rogers i>. Hoaack, 18 Wend. Hojt v. Biorr.3 Barb. MS. 

SI9, rercnitig 6 Paige, 415 ; Morion v. * Dillon ». Barnard, SI Wall. 490. 
84 



3igitiz eC by GOOgle 



ARISING BT EQUITABLE ASSIGNMENTS. [§§ 49, 50. 

the contractor the right to have them applied to his payment 
when the services are rendered or the materials are furnished. 
There must be a relinquishment by the employer of the right 
of dominion over the funds, so that without his aid or consent 
the contractor can enforce their application to his payment when 
bis contract is completed. In tbe case at bar there is no cir- 
cumstance impairing the dominion of the corporation over the 
fnnds received from the bonds ; there is only its covenant with 
the trustees that tbe expenditure of those funds shall be made 
with the approval of one of them, and that one of them shall 
give his written assent to its contracts before they are paid out 
of such funds. There is no covenant with the contractor of any 
kind in the instrument, and no right is conferred upon him to 
interfere in any disposition which the corporation may see fit to 
make of its moneys. The essential elements are wanting in the 
transaction between him and the corporation to give him any 
Hen npon its funds. No Tight, therefore, exists in him to pursue 
such funds into other property npon which they have been ex- 
pended. The case, as already intimated, is on his part one of 
simple disappointed expectation, against which misfortune equity 
furnishes no relief." 

49. A creditor has no lien on money in the hands of the 
debtor's agent until the debtor has given an order upon the 
agent to pay it to the creditor. A tax was levied for the amount 
of the subscription of a county to a railroad company, and an 
agent was appointed in behalf of the county to receive the money 
when collected, and to pay it over when ordered. It was held 
that the railroad company had no specific or other lien on money 
collected and in the hands of the agent before he bad been 
ordered to pay it over. The county could recall the money 
in the hands of its agent at any time before payment to the 
company. 1 

60. To constitute an equitable lien on a fund, there must 

be some distinct appropriation of the fund by the debtor, such 

aa an assignment or order that the creditor should be paid out 

of it It is not enongb that the fund may have been created 

through the efforts and outlays of the party claiming the lien. 3 

It is not enough that a debtor authorizes a third person to receive 

■ Henry Comity v. Allen, SO Ho. S31. * Wright v. Kllinon, 1 W«J1. 16; Hojt 

v. Storj, 3 Barb. Ml. 

35 



* Google 



§ 51.] EQUITABLE LIENS. 

a fund and to pay it over to a creditor. 1 One who was largely 
indebted to his banker, being pressed for payment, wrote to the 
solicitor of a railroad company which was indebted to him, au- 
thorizing the solicitor to receive the money so due to him, and to 
pay it to the banker. The solicitor, by letter, promised the 
banker to pay him such money on receiving it. The solicitor re- 
ceived the amount, but paid it over to the debtor instead of the 
banker. It was held that the transaction did not amount to an 
equitable assignment, because there was no order or assignment 
by the debtor placing the fund in the control of the creditor. 
There was nothing more than a promise or undertaking on the 
part of the solicitor, for the breach of which he may be responsi- 
ble in law, but not" in equity. 3 Lord Truro, delivering the judg- 
ment upon appeal, said : s "I believe I have adverted to all the 
cases cited which can be considered as having any bearing upon 
the present case ; and the extent of the principle to be deduced 
from them is, that an agreement between a debtor and creditor 
that the debt owing shall be paid out of a specific fund coming to 
the debtor, or an order given by a debtor to bis creditor upon a 
person owing money or holding funds belonging to the giver of 
the order, directing such person to pay such funds to the cred- 
itor, will create a valid equitable charge upon such fund ; in other 
words, will operate as an equitable assignment of the debts or 
fund to which the order refers." Ue then proceeds to examine 
the letters referred to, with reference to determining whether 
they come within the principle declared. He says that the debt- 
or's letter to the solicitor does not come within the principle, be- 
cause it was not an order upon one owing money to him, nor upon 
one having funds of his. It was not an order upon the railway 
company, nor upon any officer of the company, such as to make 
it available against the company. He concludes, after a full ex- 
amination of all the circumstances, that the letter was not in- 
tended to be, and did not, according to the law applicable to the 
subject, operate as an equitable assignment to the banker of the 
debt due from the railway company. It was a mere authority to 
the solicitor to receive, which might or might not be acted upon. 
61. The rule that an equitable assignment can be effected 

> Rodick v- Gftnddl, IS Bear. 885, * Rodlck v. Gandell, 1 Dfl G., M. * G. 
Jifflnned 1 D« G., M. i. G. 768. TG3, TTT. 

' Bodick r. Gandell, 13 Bn>. 8». 



3igitiz eC by GOOgle 



ARISING BT EQUITABLE ALIGNMENTS. [§ 52. 

only by a surrender of control over the funds or property 
assigned is one that is strictly held to. A promise that cer- 
tain goods shall be held in trust for the benefit of another, and 
that the proceeds shall be paid to him, does not amount to an 
equitable assignment of the goods or specific lien upon them ; 
for in such case the owner retains control of the goods, and may 
appropriate them or their proceeds to the payment of other cred- 
itors, and the holder of such promise cannot follow the goods any 
more than he could follow their proceeds. He has no lien either 
upon the goods or their proceeds. The owner has violated bis 
promise, and for this he is personally responsible. 1 

62. The promise of a debtor to pay a debt out of a par- 
ticular fund is not sufficient. There must be an appropria- 
tion of the fund pro tanto, either by giving an order on the 
specific fund, or by transferring the amount otherwise in such a 
manner that the holder of the fund is authorized to pay the 
amount directly to the creditor without the further intervention 
of the debtor. 1 Thus, a mere personal agreement by a claimant 
against the United States, whereby he promises to pay an at- 
torney a percentage of whatever snm may be appropriated by 
Congress through his efforts to secure the payment of the claim, 
does not constitute a lien on the fund to be appropriated ; there 
being no order on the government to pay the percentage out of 
the fund so appropriated, nor any assignment to the attorney of 
such percentage.* The remedy for the breach of such an agree- 
ment is at law, and not in equity. 

A sale of goods upon the mere promise of the purchaser to 
pay for them out of the avails of their sale, and of a stock of' 
other goods then owned by the purchaser, does not give the seller 
a lien on the goods after their delivery, nor on the avails of 
their sale, that can be specifically enforced. 4 Such an agreement 
merely creates the relation of debtor and creditor, and does not 
effectually appropriate the funds to the payment of the specific 
debt 

1 Gibson v. Stone, 43 Barb. 285. for the payment of the claim, tlie attorney 

* TrUt p. Child, SI Wmll. 441 ; Wright obtained an injunction against the elaicn- 

c. KUi*on, I Wall. IS; Hoyt v. Story, a ant from withdrawing this ram fro™ the 

Barb. S8S ; Gibaon v. Stone, 43 Barb. S85, treasury until he had complied with hi* 

391. agreement about compensation ; hot the 

■ Triit p. Child, SI Wall 441. In this Snpmne Court reTersed the order. 

rase, Coogreaa baring appropriated a earn * Sttwart ». Hopkins, 30 Ohio St. MS. 

87 



* Google 



§§ 58, 54.] EQU1TABLK HENS. 

S3. Workmen have no lien on money retained by the 
owner of property out of sums due to a contractor, for the 
owner's own protection against »!»'""' for labor and ma- 
terials. A provision in a contract for work and the furnishing 
of materials whereby the employer is authorized to retain, out of 
the moneys that may be due to the contractor, such amount as 
may be necessary to meet the claims of all persons who have 
done work or furnished materials, and who shall have given no- 
. tice of their claims within a limited time, until such liability shall 
be discharged, creates no equitable lien upon the fund retained, 
and raises no equitable assignment of it in favor of laborers or 
material-men. The contract does not provide for any application 
of the moneys retained to the payment of claims contained in the 
notice. The only benefit a laborer or material-man could secure 
by filing such notice would be, that he would stop the payment 
of the amount to the contractor, and he would know where bis 
debtor had funds wherewith to pay the claim ; bnt he could 
reach these funds only by trustee process, or some other form of 
attachment. 1 

64. The designation of the particular fund must be clear 
and definite to give effect to an order as an equitable assignment, 
in distinction from an order drawn against a general credit. The 
president of a company wrote a letter stating that, if a certain 
person in its employ would make an order on its treasurer for any 
portion of his salary, and the payee would file it with the treas- 
urer, the sum would be paid monthly so long as the employee re- 
mained with the company and the order ''remained unrevoked." 
The employee accordingly drew an order for three hundred dol- 
lars in monthly payments of fifty dollars, closing the order with 
the words, "and charge the same to my salary account." The 
order and letter were filed with the treasurer, but before anything 
was paid upon the order the drawer wrote the treasurer counter- 
manding the order. In a suit against the company to recover the 
amount of the order, it was held that the plaintiff could not re- 
cover ; that, treating the order as a bill of exchange, the company 
accepted it only conditionally that it " remained unrevoked j " and 
that it did not operate as an equitable assignment, inasmuch 
as the order was not a requirement to pay out of a designated 
fund or from a particular source. Upon this point the court said : 

i Qninka *. Rmell, IS J. & 8. US. 



3igitiz eC by GOOgk 



ARISING BT EQUITABLE ASSIGNMENTS. [§ 55. 

" The order does not, in terms, direct the payment of the salary 
or wages, or any part thereof, to the payee. It is a request, or at 
most a direction by the drawer, to pay certain specific sums of 
money, generally, for a certain period and on particular days, 
without the designation therein of any claim for a debt due or to 
become due to him, unless it is contained in the further direction 
to charge the amounts paid to bis salary account. This, it is 
trne, recognizes the fact that there was a relation between the 
parties at the time which entitled the drawer to a credit for ser- 
vices rendered by him, and for which a salary was payable ; 
bat the direction would have been as proper if the suras to be 
charged were for moneys lent and advanced previous to the earn- 
ing of the salary as for a salary actually earned, and for which 
an indebtedness had accrued. It was not a requirement that the 
payment shonld be made out of a designated fund, or from a 
particular source, but it was a provision made for the reimburse- 
ment of what should be paid in compliance with the request or 
direction." l 

65. A bill of exohanfre does not of iteelf constitute an 
equitable assignment of the sum named, unless it specifies a par- 
ticular fund upon which the order or bill is drawn, and the drawer 
has divested himself of all right to control the fund.* A bill of 
exchange in the ordinary form does not specify any particular 
fund upon which it is drawn, and therefore does not constitute 
an equitable assignment of any snm in the hands of the drawee ; 
and an order which is payable out of a particular fund is not a 
negotiable bill of exchange, for such an instrument must be pay- 
able absolutely, and not contingently out of a particular fund. 
Even after an unconditional acceptance of a bill, it cannot in 
strictness be held to operate as an assignment to the payee of 
the drawer's funds in the hands of the drawee, since the latter 
becomes bound by the consent of acceptance, irrespective of the 
funds in his hands. 8 

> Sharer u. Western Union Telegraph F. Int. Bank r. Jonncej, 3 Sandf. 357; 

Co. BT N. Y. 459. Winter v. Drnry, 5 N. Y. 5SS ; Cowper- 

* Teates t>. Ore-rat, 1 Tat. Jr. ISO; tbwaita e. Sheffield, 1 Sandf. 416, affirmed 

Walton v. Wellington, I Rota. ft M. 60S, 3 S. T. 2*3 ; Harris a. Clark, 3 N. Y. 93, 

605 ; Lett a. Morrie, 4 Sim. 607 ; Burn v. 91 Am. Dec. 352. 

Carvalbo, 4 Mylne ft C. 690; Malcolm a. • Cowperthwait* t>. Sheffield, 1 Sandf. 

Seotl. 3 Hare, 39 ; Chapman a. While, 6 416. 

N. Y. 412, 57 Am. Dec 464 ; Maries ft , 

89 



y, Google 



§§ 56, 57.] EQUITABLE LIENS. 

66. If a bill of exohange drawn against a consignment 
does not itself refer to the consignment, and the consignee is not 
otherwise instructed to hold the consignment or the proceeds of 
it for the payment of the bill, there is no appropriation for the 
payment of the bill which will constitute a lien. 1 

A mere tetter of advice from the consignor to the consignee 
that a bill of exchange has been drawn against the consignment 
does not, it seems, operate as a specific appropriation of the pro- 
ceeds to the payment of the bill. Even if the tetter of advice 
amounts to a specific direction to apply the proceeds of the con- 
signment to the payment of such bill, it does not operate as a 
specific appropriation of the proceeds to the payment of the bill 
unless it he shown that the purchaser or holder of the bill took 
it on the faith that the proceeds of the shipment were to be ap- 
plied to its payment. 3 But a draft or order made payable out of 
a particular fnnd is an assignment of the fund pro tanto? 

67. A chock drawn upon a book doea not operate as an 
equitable assignment of the funds of the drawer to the amount 
of the check, nor does it create any lien upon such funds, 4 if it is 
drawn in the ordinary form. In such form it does not describe 
any particular fund, or use any words of transfer of the whole 
or a part of any particular amount standing to the credit of tbe 
drawer. Such a check is in legal effect like an unaccepted bill 

1 Frith v. Forbes, 4 De G., F. & J. 40S, T. 412, 57 Am. Dec 48* ; People tr. Mer- 

421, per Tomer, J. chants' «. Mechanics' Bank, 78 N. Y. 269, 

■ Cowperth unite o. Sheffield, S N. T. 34 Am. Dec. 539 ; Duncan n. Berlin, 60 

243, affirming 1 Band! 419. N. Y. 1S1 ; ^Etna Nat. Bank p. Fourth 

1 Yeate* v. Groves, 1 Yea. Jr. 280; Nat Bank, *fiN. Y. 82, 7 Am. Rep. 3U ; 

Hall v. City of Buffalo, 1 Keyn, 193; Tyler p. Gould, 48 N. Y. 682. 

Vreeland v. Blnnt, 6 Barb. 189. The XlMonrl: Dickinson v. Coates, 79 Mo. 

fnnd drawn upon in thii caae had been 350, 49 Am. Rep. 228; Merchants' Hat 

let apart for certain specified purpose*. Bank v. Coatee, 79 Mo. 168 ; Coato s. 

among which was the payment of the sura Doran, 83 Mo. 337. The former case ex- 

mentioned in the order, and the order it- preaslj dissents from McGrade t>. German 

■elf specified the fund. It was of course Saving* Intl. 4 Mo. App. 330. 

an equitable appropriation of the amount PenniylTania : Lojd v. McCaffrey, 46 

to drawn. Pa. 8t. 410. 

* Hopkinson v. Fortttr, L. R. 19 Eq. Maryland: Moses v. Franklin Bank, M 

74; Christmas e. Russell, 14 Wall. 69; Md. 574, 580. 

Thompson o. Rigca, 5 Wall. 663; Bank aUMMhwwtti: Carr v. Nat. Security 

of Republic p. Millard, 10 Wall. 13!; Bank, 107 Han. 45, 9 Am. Rep. 6 ; Dana 

First National Bank p. Whitman, 94 U. v. Third Nat. Bank, 13 Allen, 446, 90 

8.343. Am. Dec. 916; Billiard v. Randall, 1 

K«w York : Chapman v. White, 6 N. Gray, 60S, 61 Am. Dee. 433. 
40 



3igitiz eC by GOOgle 



ABISING BT EQUITABLE ASSIGNMENTS. f§ 58. 

of exchange in the ordinary form. It does not operate as an equi- 
table assignment of any part of the funds of the drawee in the 
bands of the drawer ; and it is immaterial that the drawer is not 
a bank. 1 Accordingly, where an insurance company gave its 
check in the ordinary form upon a trust company in payment of 
i loss, but before its presentation a receiver of the company was 
appointed, who withdrew all tbe funds on deposit, it was held 
that the payee was not entitled to hare the amount of the check 
paid out of funds in the receiver's hands in preference to tbe 
claims of other creditors. The fact that there was a receipt upon 
the back of the check, intended to be signed by the payee, was 
held not to create a lien upon the fund drawn upon. A state- 
ment of tbe consideration for a draft or check, either generally or 
specifically, whether on the back or in the body of the instru- 
ment, does not create a lien or appropriation of the particular 
fund without some expression to that effect. 3 

68. The lien of the holder of a bill of exchange apon the 
fond in the hands of the drawee has ita foundation in a 
special agreement or implied understanding of the parties, 
entered into at the time of discounting or purchasing the bill, 
that the fund in the hands of the drawee is appropriated to the 
payment of the bill. 8 In upholding the lien and devoting tbe 
fund to the payment of the bill, the court executes the agree- 
ment and carries out the understanding of the parties. Even a 
verbal un dei-standing between the drawer and a person discount- 
ing the bill, that it is founded on a shipment of goods, and that 
their proceeds shall be applied to the payment of the bill, is 
sufficient to effect an equitable transfer or lien. 4 A merchant 

1 Attorney-General v. Continental L, Sonth Carolina; Fogertiea c. State 

Ini. Co. In re Herri]), 71 N. T. 3SS ; Back, IS Rich. 518, TS Am. Dec. 438. 

Luat t. Bank of North America, 49 Barb. * Attorney-General v. Continental L. 

HI. In.. Co. 71 N. Y. 325, 27 Am. Rep. 55. 

There are some authorities to the effect * Barn v. Carralho, 4 Mylne & C. 690 ; 

that a check in the nanil form is an equi- Flour City Nat. Bank c. QarAeld, 30 Han, 

table assignment of ao much of tbe draw- 379. 

Wi deposit as the check call* for. Bnch * Floor City Nat. Bank v. Garfield, SO 

is tbe raleadopied in the following State* : Hun, 579. Thin It contrary to some ei- 

luoub: Mnnu v. Burch, 29 111. 33; presaioni to be found in earlier caaea. Ma- 

Ckicago Marina & F. Ins. Co. v. Stnnford, rine * Fire Jul. Bank v. Jasmcer, S Sandf. 

IS III. 166, 81 Am. Dec. 370 ; Union SS7, is perhaps the cue most directly in 

Nat- Bunk ■, Oceana. Co. Bank, 80 III. conflict with the above. It is there said 

111,93 Am. Rep. 185. that a bill of exchange, though understood 

Iowa: Roberta r, Aoalin, B6 Iowa, 315. to bo drawn sgainst ceruin goods or their 

41 



3igitiz eC by GOOgk 



§ 59.] EQUITABLE LIENS. 

shipped a cargo of wheat to commission merchants in New York, 
and the next day drew a draft upon the consignees and procured 
a discount of it at a bank, upon the representation that the cargo 
had been shipped to the drawees, and with the understanding 
that the draft was drawn against the proceeds of the shipment. 
The drawer at the same time wrote to the consignees that the 
draft had been drawn, and requested them to accept it The 
next day the drawer, being insolvent, made a general assign- 
ment for the benefit of his creditors. The assignee seized the 
wheat before it reached the consignees and sold it. In an action 
by the bank, a lien was established in its favor as against the 
assignee. The court say that the evidence showed that the draft 
was discounted by the bank upon the credit of the wheat which 
had been shipped by the drawer, and relied upon the avails of 
the same for tbe acceptance and payment of the draft. The 
bank was told that the wheat had been shipped, and that the 
draft was drawn against the shipment, and this justified the con- 
clusion that the draft was discounted upon the credit of the ship- 
ment. 1 

69. A brief reference in a draft against a consignment to 
an appropriation of the proceeds has, together with other 
evidence of the appropriation, been held to create a lien. 1 
Thus, in a recent case, it appeared that the draft against a con- 
signment of corn directed the amount to be charged "as ad- 
vised," and the consignee was advised by letter of the drawing 
of the draft. This reference made in the draft was regarded by 
the court as extending the nature of the transaction beyond that 
of the mere discounting of a bill of exchange ; for the bankers 
discounting the bill were justified in concluding that property 
had been shipped to the consignee, and that he had been directed 
to pay the draft out of the proceeds of the shipment. It was a 
fact found that the discount was made with the knowledge of, and 

proceed!, makes no special appropriation ply the proceed! to the payment of any 
of either to the payment of tbe bill. The general balance due him from the eon- 
drawer baa the same legal control of the eignor, or in any other way that the eon- 
goodi or of their proceeds in the hands of eignor and consignee might agree upon, 
the consignee that he had before nrgo- Thin decision In effect overruled the 
tiating lha bill of exchange. If the goods same caie before tbe equity court in 1 
or their proceeds afterward* come into the Barb. 486. 

drawer's bands, tbe holder of tbe bill will * Flour City Nat. Bank tr. Garfield, 90 

ham no equitable lien upon them. The Hun, S79. 

consignee, moreover, baa the right to ap- * Parker v. Baxter, 19 Hon, 410. 
42 



3igitiz eC by GOOgle 



ARISING BY EQUITABLE ASSIGNMENTS. [§§ 60, 61. 

in reliance upon, that arrangement. Direct evidence of this was 
not given, but circumstances were proved from which that conclu- 
sion was reasonably drawn, and they were sufficient to establish 
the fact that when the bill was discounted it was done on the 
understanding that its payment had been provided for from the 
proceeds of the shipment. The letter and the bill, and the under- 
standing of the parties, so far qualified the nature of the direction 
and request made in the bill as substantially to render it an order 
for a corresponding amount of the proceeds of the shipment. 
That created a charge or lien upon the corn and its proceeds in 
favor of the bankers discounting the bill under these circum- 
stances. There was something more than a simple direction by 
the shipper to the consignee to apply the property to the pay- 
ment of the bill, for the bill itself was negotiated and discounted 
on the distinct understanding that the proceeds of the corn should 
be applied to its payment. 1 

60. If a consignee receives goods under an express direc- 
tion to apply the proceeds to the payment of a particular bill 
of exchange, an equitable lien is created in favor of the holder of 
the bill, if he took it relying upon such appropriation, and this 
will prevail against the general lien of the consignee. 

In general it may be said that if, at the time a consignment 
is made, the consignee be notified that a draft has been drawn 
against it, and the draft is discounted on the faith of the consign- 
ment and instructions, then the nature of the transaction is ex- 
tended beyond the mere discounting of a bill of exchange drawn 
against a consignment. 1 The party discounting the bill has an 
equitable lien upon the goods or their proceeds to the extent of 
his advances. 

61. The general lien of a consignee cannot be set up 
against the express directions of the consignor given at the 
time when the consignment is offered and accepted, whereby a 
lien is created in favor of the payee of a draft drawn against the 
consignment. 8 If a consignee thinks proper to accept a consign- 
ment with express directions to apply it or the proceeds in a par- 

1 Per Daniel*, J., in Parker v. Baxter, v. Steward, 25 H. Y. 239, 83 Am. Dec 

19 Hun, 410. 346. 

'IlrToti: Parker p. Baiter, 19 Hno, » Frith v. Forbes, 4 De Q., F. & J. 409; 

410; Morton v. Najlor, 1 Hill, 583; Hojt C»yngm Co. Nat. B«nk p. Daniel*. 47 N. Y. 

r. Story, 3 B«rb. KS ; Marine & P. In*. 631 j Bailer v. Hodwm Bird R. R. Co. 

Beak v. Janncer, 1 Barb. 486 ; Lower; 49 H. Y. 70. 

48 



3igitiz eC by GOOgk 



§ 62.] EQUITABLE LIENS. 

tictilar mode, he cannot set up bis general lien in opposition to 
thoae directions. In such a case, only what remains after answer- 
ing the particular directions becomes subject to the general lien.' 
If the consignee be notified that a bill of exchange in favor of a 
third person is to be paid out of the proceeds of the consignment, 
this direction, in connection with the bill of exchange, amounts to 
an appropriation of the consignment to the payment of the bill 
of exchange, and the holder of the bill has a lien upon the con- 
signment or the proceeds of it. The lien exists whether the bill 
be accepted or not If it be not accepted, the consignment is sub- 
ject to the lien in favor of the bolder of the bill ; if it be accepted, 
the consignee becomes personally liable upon the acceptance, and 
the lien also attaches to the consignment or the proceeds of it, so 
long as the proceeds can be traced. 

But a mere direction of " Advice of draft " on a bill does not 
operate as an appropriation of the consignment ; and the case 
of Frith r. Forbes, so far as it goes to establish a general prin- 
ciple of law to this effect, is impugned by the later English 
cases. 1 

62. The delivery of a bill of lading to one who discounts 
a draft drawn against the shipment is a sufficient appropri- 
ation of the property to give the holder of the draft an equita- 
ble lien upon the property. Ordinarily the question of an equi- 
table lien does not arise in such a case, because the delivery of the 
hill of lading amounts to a pledge and delivery of the property 
itself. But an equitable lien might be declared in such a case.* 
The fact that the discount of the draft is obtained on the deliv- 
ery of the bill of lading is conclusive that an assignment of the . 
property, either legal or equitable, was made for the security of 
the draft. 

There is no equitable lien upon moneys advanced to the drawer 

1 Frith v. Forbes, 4 De G., F, & J. 409, which was a discount of a draft on the 

per Tomer, J. See, however, Robe; v. security of a bill of lading delirand at 

Oilier, L. R. 7 Ch. 477 ; Phelps r. Comber, the lime, Paige, J., declared that, if the 

29 Ch. D. 813 ; Brown t, Koagh, 19 Ch. bank which discounted the draft had filed 

D. 848. a bill in aquitj for relief, it was dear that 

* Phelpa b. Comber, 19 Ch. D. 813; the bank would have bean entitled to a 
Brown t,-. [Rough. 29 Ch. D. 848 ; Robey decree declaring ita demand against tin 
p. Oilier, L. R. 7 Ch. 695 ; inn Eiitwictle, consignor who drew the draft aa eqnita- 
3 Cb. D. 477. ble lien on the goods consigned. And see 

• Bank of Rochester v. Jones, 4 N. T. Cajnga Co. Nat. Bank e. Daniels, 4T N. Y. 
497, 499, 55 Am. Dec 290. In this case, 631. 

44 



3igitiz eC by GOOgk 



ARISING FBOU ADTANCES MADE AND MONET PAID. [§ 63. 

of a bill of exchange on the security of a bill of lading of goods 
against which the bill of exchange is drawn, upon the failure of 
the consignee and the sale of the goods for a sum insufficient to 
repay the advances upon them. When the borrower receives 
the money upon such a bill of exchange and bill of lading, the 
money is his, and not the money of the lender ; nor is it clothed 
with a trust, or subject to a lien in his favor. The lender baa 
parted with his money, and has in place of it the security he 
bargained for. 1 

A warehouse receipt, like a bill of lading, gives the holder a 
lien upon the goods named in the receipt, provided it is issued by 
a public war oho use man, and the goods can be identified. 1 

III. Aritingfrom Advance* Made and Money Paid. 

63. Where in terms the parties agree that one making 
advances for the purchase of merchandise to be shipped to 
him shall have a lien upon the same, the lien arises upon 
the purchase of the merchandise before it is consigned to the 
creditor. The lien in such case attaches to the merchandise pur- 
chased and in the hands of the debtor at the time of his bank. 
rnptey, and may be asserted as against tbe debtor's assignee in 
bankruptcy. Judge Story said that the possession of the prop- 
erty by the debtor was not a badge of fraud, or against the policy 
of the law, or in any manner to be deemed inconsistent with the 
just rights of his general creditors ; and therefore the agreement 
to give a lien or equitable charge was binding upon the property 
in the hands of the assignee. 8 

Such lien is a specific lien on the merchandise shipped to the 
person making the advances, and not a general lien as against an 
equitable owner of a share of the merchandise, though tbe debtor 
to whom the advances were made agreed that any surplus in the 
merchandise or the proceeds thereof, after satisfying the advances 
upon tbe same, should stand as security for any other indebtedness 
of bis to the person who made the advances, the latter at the time 
knowing of tbe rights of the equitable owner of a part of the 
merchandise. The agreement for a general lien, after satisfying 
tbe specific lien, was a valid one as between the parties to it, but 

1 Grhmell v. Sdvdam, 3 Sindf. 133. • Fletcher e. Motdj, 2 Storj, 559. 

1 Unko Tratt Co. v. Trumbull (HI.), 
W H. E. Baa M. 



3igitiz eC by GOOgle 



§§ 64, 65.] EQUITABLE LIENS. 

it could not affect the rights of an equitable owner of a part of 
the merchandise who did not consent to such agreement. 1 

64. Under an executory agreement to purohase and con- 
sign property, no lien arises until the property is actually 
acquired by the debtor, and perhaps not till it is actually con- 
signed to the creditor in accordance with the agreement. A 
merchant accepted a draft under an agreement that the drawer 
would invest the proceeds in cotton, and ship the same to the 
merchant for sale. The drawer obtained a discount of the draft 
at his bank, and the proceeds were placed to his credit. Two 
days afterwards, the money still standing to his credit, he died. 
In a contest between the acceptor and the creditors of the drawer 
it was held that at law the money raised on the bill became un- 
conditionally the property of the drawer, and at his death passed 
to his administrator, and that in equity the acceptor had no lien 
upon the proceeds of the draft. 3 If there was any lien, it arose 
out of the agreement of the parties, — the agreement that the 
proceeds of the draft should be used for the purchase of cotton to 
be consigned to the acceptor. Until the cotton was purchased, 
the thing did not come into being upon which the lien could at- 
tach. Whether the agreement to consign created a lien at all, or 
merely a personal covenant, might be a question of doubt. Bat 
certainly no lien could attach to the money, because there was no 
contract in regard to the money under which a lien could arise. 
Any lien implied by the contract was upon the cotton. While 
the drawer lived, a lien upon the cotton was a possible thing ; it 
would arise upon the purchase and consignment of it in accord- 
ance with the agreement. Whether the lien would arise upon 
the purchase before the consignment, is a question which did not 
arise in this case, though the court incidentally discussed the ques- * 
tion, and expressed a doubt whether the lien would attach upon 
the purchase of the cotton. 

66. A lien by express contract upon a crop to be raised 
prevails against the debtor's assignee in insolvency. The 
creditor having the earliest lien by contract has an equity supe- 
rior to that of the general creditors. 8 The maxim, qui prior ett 
tempore, potior e*t injure, applies. 

A fanner entered into a contract with a firm of traders by 

1 Drsxel v. Poua, 133 NT. IS9, 30 N. * Holt b. Bank of Angiuta, 13 Qa. 341. 
E. Rep. 732. • Kirkiey v. M«*na, 42 Ala. 486. 

46 



3igitiz eC by GOOgle 



ARISING FBOM ADVANCES MADE AND MONKY PAID. [§§ 66, 67. 

which they were to become hie agents for the sale of his crops, 
advance him money, and accept his drafts, for the payment of 
which be pledged his crops on hand, and the growing crops of 
the year. Upon the faith of this agreement the traders made 
large advances to tbe farmer, who died at the close of the year 
largely indebted to tbem. His executor took possession of the 
crops, and resisted the claim of lien on the part of tbe traders, 
upon the ground that they were in no better condition as to tbe 
crops than the other creditors of the deceased. It was held, bow- 
ever, that the agreement constituted a lien which a court of equity 
would enforce. 1 

66. An equitable lien arises under a contract whereby a 
creditor is to receive half the proceeds of a certain crop 
upon which the contract gives a lien. Thus, where a mortgagor, 
in consideration of the mortgagee's forbearance in foreclosing tbe 
mortgage, agreed to cultivate the mortgaged land in cotton for 
one year, and to give the mortgagee one half of the cotton raised, 
the value of the same to be credited on the mortgage notes, and 
gave a lien on the whole crop for the payment of the one half, 
tbe debtor having died during the year, and his estate having 
been declared insolvent, it was held that the mortgagee obtained 
an equitable lien on the cotton, which he could enforce in a court 
of equity, and that his Hen was superior to the equity of the gen- 
eral creditors. 9 

67. Liens by contract for advances to manufacturers upon 
manufactured goods. — A firm of merchants entered into an 
agreement with a firm of silk manufacturers, whereby the former 
agreed to furnish tbe latter with raw materials for tlie manufac- 
ture of silk goods, and to advance funds for purchase thereof ; 
and tbe goods when manufactured were to be delivered to and 
sold by the merchants, and the balance of tbe proceeds of each 
sale, after deducting commissions, insurance, and advances, was 
to be paid to the manufacturers. After this arrangement had con- 
tinued some years the manufacturers failed, and made a general 
assignment for the benefit of their creditors. The assignee took 
possession of all the stock and machinery of the debtors, and 
among the stock were many pieces of silk goods, finished and un- 
finished. The merchants who had made the advances claimed an 
equitable lien on these for tbe balance due them from tbe mann- 

i fiolliTjui p. Tuck, I Hd. Ca. 6». * Kirkasr c Mtani, 42 Alt 42ft. 

47 



3igitiz eC by GOOgle 



§ 68.] EQUITABLE LIENS. 

facturers, and brought suit to enforce the same. It whs held, 
however, that the plaintiffs were not entitled to recover, for, 
assuming that ft lien wat created by the agreement, there was no 
sufficient evidence to identify tbe property or its proceeds as that 
which tbe plaintiffs hod advanced. 1 

An agreement whereby a merchant was to advance money to 
a tanner, to enable him to buy hides for his tannery, provided 
that the advances shonld be charged to the tanner, and that the 
hides bought by him with such money should be bought in tbe 
merchant's name and should be his as security for all sums due 
him. The bides were in fact bought in the tanner's own name. 
It was bf-ld that, while the merchant had a lien on tbe hides, this 
lien was not valid against a bond fide purchaser front the tanner 
without notice of the merchant's lien. 3 

68. There is no implied lien upon personal property in 
favor of one who has advanced money (or it, without having 
either the title or possession. 8 Thus, a merchant received from 
another merchant a sum of money, for which he gave a receipt 
stating that he received it as an advance on a shipment of flour 
then making on board a certain ship, to be consigned to the house 
of the merchant making the advances. The flour was afterwards 
purchased by tbe merchant who received the advances, and waa 
delivered by tbe seller on board a ship freighted by this mer- 
chant. The latter, having stopped payment about the same time, 
agreed with the seller of the flour, who was ignorant of the agree- 
ment with the merchant who made tbe advances, to rescind the 
sale, and gave him back the bill of parcels. It was held that the 
merchant who made the advances had no lien on the flour that 
could prevent the merchant who received the advances from re- 
scinding the contract with the seller of the flower, attd re-deliver- 
ing to him the flour. To constitute a lien upon a corporeal chat- 
tel at common law, possession is essential ; and while in equity 
a fund may be appropriated by an assignment without delivery 
of the fund itself, yet this is only where, from the nature of the 
fund, a transfer of possession is impossible. There can be no ap- 
propriation of a chattel susceptible of delivery which will prevail 
against third persons, without a delivery good at common law.* 

1 Penon t>. Obertenffer, 59 How.Pr.S39. minm u. Thurbtr, 3 N. Y. Snpp. S3, SO 

* Marah r. Tims, 6 T. 4 C. S9. St. Rep. W. 

* Allen v. SbortriJga, 1 Dut. U j Mao- * Cleauon v. Davidwra, 5 Bion. SM, 

48 



3igitiz eC by GOOgle 



ARISING FBOM ADVANCES MADE AHD MONEY PAID. [§§ 69, 70. 

Chief Justice Tilghman npon this point said : " Any order, writ- 
ing, or act which makes an appropriation of a fund, amount* to 
an equitable assignment of that f und. The reason is plain : the 
fond being neither assignable at lair, nor capable of manual pos- 
session, an appropriation of it is all that the case admits. A 
court of equity will therefore protect such appropriation, and con- 
aider it as equal to an assignment. Bat very different is the ease 
of a parcel of flour, which admits of actual delivery. Every man 
who purchases an interest in property of this kind ought to take 
immediate possession ; if he does not, he is guilty of negligence, 
and can have no equity against a third person who contracts with 
the actual possessor without notice of a prior right." ' 

69. A contract whereby a planter agrees to ship his crop 
of cotton to his factor, to reimburse him for advances and sup- 
plies, does not create a lien upon the cotton raised. 1 

A merchant, in the spring of the year, made advances to a 
planter on his verbal promise to give a lien on his crop for the 
year to secure the advances. In June, the planter died suddenly 
without having given the lien, and his estate was insolvent. On 
a bill in equity by the merchant to marshal the assets of the es- 
tate, it was held that he had no equitable ground for relief. To 
entitle one to the benefit of an agricultural lien under the stat- 
ute, he must comply strictly with the conditions of the statute. 
When one comes into a court of equity to compel specific per- 
formance of a contract, he must first show that all has been done 
that could be done to comply with the law. If he has been neg- 
ligent in the matter, the court will not lend its aid to complete 
the contract, for this would be to encourage negligence in parties 
making contracts* 

In like manner an agreement between an owner and a builder, 
that a balance of account due the builder should be paid out of 
the income of the building, does not create a lien upon such in- 
come which can be enforced in equity. 4 

70. An equitable lien does not arise io favor of one who 
has made advances to another to enable him to make im- 
provements upon his property, though there was an understand- 
ing at the time that a lien should be given upon the property 

1 Clouon f. Davidson, 5 Binn. 889, * Canton p. Gil mora, 3 8. C. 16. 

398. * Alexander t>. Berry, M Miw. 4SS. 
* ADeii p. MoutgMnerr, 48 Miu. 101. 
VOL. I. 4 49 



* Google 



§ 71.] EQUITABLE LIENS. 

improved. Thus, where one loaned money to a mill-owner to be 
used in rebuilding a certain mill which had been destroyed, and 
it was understood that the lender was to have a lien on the mill to 
secure him, but no writing was made except a note for the money, 
upon the death of the borrower and the insolvency of his estate 
it was held that equity would not sustain a lien on the mill in 
favor of the lender, to the prejudice of other creditors of the 
borrower. 1 

Had there been a written agreement that a mortgage should 
be given, equity might have declared such agreement to be an 
equitable mortgage ; or had there been an express oral agreement 
that a mortgage should be given, and it could be shown that the 
failure to execute the mortgage was by reason of some fraud or 
accident, there might be good ground for relief in equity. But 
mere neglect to execute the mortgage, or neglect to execute a 
written agreement for a mortgage, is not such an accident as 
equity will relieve against. "It does not come to the aid of 
the sleeper, but of him who, though awake, has been entrapped by 
fraud, or been prevented from getting his agreement put into 
writing by inevitable accident." * 

Money advanced by one person to enable another to make im- 
provements upon his property, as for instance to erect upon his 
own land a steam mill with machinery, creates no lien upon the 
mill and machinery. The advances constitute merely a debt from 
the party to whom the money is advanced. 8 

71. A lien upon the property of another is not created by a 
voluntary payment of a liability of his without request. 4 But 
a request might be inferred from circumstances. 6 Under special 
circumstances, a joint owner of property may have a lien upon the 
interest of the other part owners for advances made for repairing 
and preserving the property, especially if such repairs were neces- 
sary, and their consent to make them was unreasonably withheld. 
But in such case the party asserting the lien must show the spe- 
cial circumstances which will give him such lien. 6 Constructive 
liens will not now be extended and applied to cases where by the 

1 PrlntQp r. Barrett, 46 Q*. 407. * Taj lot v. Baldwin, 10 Barb. 626. 

> Frintnp v. Barrett, 46 Ga. 407, per * Oatfleld p. Waring, 14 Johns. IBS. 

McCay, J. * Tay lor tr. Baldwin, 10 Baxb. 6S6. And 

« Weathershy r. Sleoper, 4S Miw. 78S. we Doaoe tr. Badger, 11 Mas*. 66. 
To like eflact see Garland v. Hull, 13 8m. 
AM. 76, SI Am. Dec 140. 
60 



3igitiz eC b y GOOgl£ 



ARISING FBOM ADVANCES HADE AND MONEY PAID. [§§ 72, 73. 

rates of law they are not already clearly established ; for such 
liens are not now encouraged. 1 

72. One who voluntarily pays premiums of insurance for 
another, in the absence of any agreement or understanding that 
for Buch payments he should have a lien upon the policy or its 
proceeds, has no lien upon the proceeds collected by him as the 
agent of the insured. 1 

One who procures insurance for another in pursuance of a re- 
quest to do so and to forward the policy, and not as a broker or 
general agent, has no lien on the policy. By undertaking to exe- 
cute the order, he binds himself to comply with the terms and 
forward the policy, and this precludes the supposition that he 
was to have any lien upon it or interest in it. And though Bach 
person be the ship's husband for the general management of a 
vessel which ia the subject of the insurance, yet he has no lien on 
the policy for the balance of his account. 3 

73. There is no equitable subrogation in favor of one who 
pays a debt for which he is not personally bound, and which 
is not a charge upon his property, so as to entitle him to be sub- 
rogated to a lien which the creditor had upon the estate of the 
debtor. 4 

A stranger, by voluntarily paying the wages of workmen who 
are entitled to a lien, obtains no right in equity to a subrogation 
to their lien, in the absence of any assignment, or of an agree- 
ment that he should have the benefit of their lien. The superin- 
tendent of the work of constructing a railroad, without any ob- 
ligation on his part, voluntarily, for the purpose of befriending 
the workmen, advanced his own money to pay them their wages, 
supposing the railroad company to be solvent. He had no assign- 
ment, legal or equitable, of the wages paid, and there was no 
understanding that he was to have the benefit of their lien. It 
was held that he was not entitled, by subrogation, to the work- 
men's statutory lien for such wages. " The statutory lien given to 

1 Taylor v. Baldwin, 10 Barb. 026, per 38 N. J. Eq. 433, 437. " It has nerer 

ADen, J, been held that one who lends or advances 

* Meier v. Meier, 15 Mo. App. SB, ef- money to a corporation to enable it to paj 
firmed 88 Mo. 566. laborers, who, if [heir wages had remained 

* Reed f. Pacific lus. Co. 1 Met. 166. unpaid, would have been entitled to the 
1 Jones on Mortgages, § 874 a; Wilkes lien therefor, U, merely by rirtne of inch 

v. Harper, 1 N. T. 586. loan or advance, entitled to that lien by 

* lit n North Hirer Construction Co. equitable ■abrogation.'' 

61 



jipismb, Google 



g§ 74-76.] EQUITABLE LIENS. 

workmen is to be confined within its legitimate limits. It is not 
to be extended, by a forced application of the principle of subroga- 
tion in eqnity, to cases not within the mischief which the law was 
designed to remedy. The object of the legislature was, to secure 
to a very meritorious but helpless class of persons the payment 
of the wages of their toil, and to that end to give them personally 
a paramount lien on the assets of the employer. It did not con- 
template giving to creditors from whom the company might bor- 
row money on its own credit, with which to pay its workmen, such 
a lien on the assets for their reimbursement." l 

74. But one who pays a debt of a railroad company for 
rolling-stock under a contract with the company for security 
by subrogation to the rights of the vendor, under his contract 
with the company, is entitled to such subrogation to the vendor's 
lien, and cannot be considered a mere volunteer in making the 
payment. 3 

74 a. There is an equitable lien upon a legacy in favor of 
the testator's estate for the amount of a debt due from the lega- 
tee to the testator. Such a lien may be spoken of as an equitable 
right of set-off. " The right to retain is grounded upon the prin- 
ciple that it would be inequitable that a legatee should be entitled 
to his legacy while he retains in his possession a part of the funds 
out of which his and other legacies are to be paid. He should 
not receive anything out of such a fund without deducting there- 
from the amount of that fund which he has in his hands as a debt 
to the estate. An assignee of the legatee takes his legacy subject 
to the same equity which exists against it in his hands." Such 
lien is prior to that of a judgment creditor of the legatee. 3 

75. A mere loan of money to be used in the purchase of 
land does not create a lien upon the land for its repayment. 4 

76. A surety as such has no lien on the estate of his prin- 
cipal. The fact that his money has gone to increase his princi- 
pal's estate raises, perhaps, a natural equity that it should be 
returned to the surety out of the estate. Bat this natural equity 
yields to legal rights. Thus, if one accepts drafts for the accom- 
modation of another under an agreement that the drawer shall use 

1 In rt North River Construction Co. land Ky. Co. v. Wortendjke, ST N. J. Eq. 

38 N. J. Eq. 433, perRnnyoo, Chancellor. 658. 

1 Cob B, Now Jersey Midland Rt. Co. * Irvin E>. Palmer (Tenn.), 13 9. W. 

37 N. J. Eq. 110. And see Payne t>. Rep. 326. 

Haihawaj, 3 Vt. SI S ; New Jersey Mid- * Collinaon v. Owena, 6 G. & J. 4. 



;y Google 



ARISING FROM AQKEXlf KNT8 TO GIVE MORTGAGES. [§ 77. 

the proceeds of the drafts in the pnrchaseof merchandise to be 
consigned to the acceptor, and the drawer dies before using the 
proceeds in the purchase of such merchandise, the acceptor cannot 
maintain a lien upon the money raised upon the drafts, although 
this still stands to the credit of the drawer at his banker's. The 
fact that the money was raised on the credit of the acceptor, and 
that he accepted for accommodation, gives him no lien on the 
money. The money is the property of the drawer, and passe* 
upon his death to his executor or administrator without charge. 1 

IV. Arising from Agreement* to give Mortgage* or other Security. 

77. An agreement, on a sufficient consideration, to give a 
mortgage on specific property, creates an equitable lien upon 
such property, which takes precedence of the claims of the prom- 
isor's general creditors, and of the claims of subsequent purchas- 
ers and incumbrancers with notice of the lien. 1 

If the written agreement shows a clear intention to make some 
particular property a security for a debt or obligation, equity will 
treat the instrument as an executory agreement to give security.* 
The agreement creates a specific lien upon the property, which 
takes precedence of the claims of subsequent creditors and pur- 
chasers with notice. 4 

Where the agreement was that a mortgage should be given 
upon one building and lot out of several buildings and lots, which 
were together sufficiently identified, and afterwards a mechanic's 
lien was filed against all the houses and lots, the fact that the 
original agreement did not point ont the particular premises to 
be mortgaged was held not to impair its effect as an equitable 

> Holt o. Buikof Aagusta, 13 Gm. Ml, In Pric« n. Cutli, 29 Ga. 148, however, 

per Niibet, J. it u Mid that en agreement to execute » 

1 Jcmea on Mortgage*, }§ 163-167. mortgage in preatnti, the actual axeca- 

■ew York : Hasted v. Ingraham, TS tion of it failing through inadrertence or 

H. T. SSI; Pajne p. Wilnon, 71 N. T. other canie, does not eooslituta mch a lien 

348; dues a. Peck, SI N. T. 581; tun u will prevail egaintt rabeeqnent jndg- 

Howa, 1 Paige, 125, 19 Am. Dae 395; men t creditors. 

Wood p. Lcicr, J9 Barb. 145; Sajmoer * Pom. Eq. Jnr. 1235; Seymour v. Ca- 

v. Caaandaigiis * Niagara Fall* R. R. nandaigua * Hiaptni Fall* R. It. Co. as 

Co. 15 Barb. S8t ; Smith v. Smith, 51 Barb. 184 ; Kelly e. Kelly, 54 Mich. 30 ; 

Bun, 164, 4 N. Y. Snpp. 669. Nelaon v. Kelly, 91 Ala. 569, 8 So. Rep. 

Sooth Carotima : Dow t>. Ker, Spears' 690. 

Ch. 413 ; Maaaey >. Mcllwain, 9 HDl's • Lanning p. Tompkins, 45 Barb. 308. 
Ch. 411, 438. 

68 



;y Google 



§§ 78, 79.] EQUITABLE MENS. 

lien, at least as against the claimant of a mechanic's lien, who 
could not be affected by the application of the lien to any one of 
the houses and lots, his lien being upon all. 1 

78. An agreement to give any other security rests upon 
the same principle. If one borrows a promissory note from a 
friend to obtain a discount at a bank, and promises by letter to 
give his friend a bill of sale of a schooner as security, and the 
borrower dies without giving the bill of sale, and the lender of 
the note is obliged to take it up, he has an equitable lien on the 
schooner in preference to the general creditors of the deceased. 
The bill of sale must be considered as made at the time of the 
giving of the note. 3 

In like manner, if a person covenant that he will, on or before 
a certain day, secure an annuity by a charge npon freehold es- 
tates, or by investment in the funds, or by the best means in his 
power, such covenant will create a lien upon any property to 
which he becomes entitled between the date of the covenant and 
the day so limited for its performance. 1 

79. In this way a debtor's agreement to insure for the ben- 
efit of a creditor may give the latter an equitable lien upon 
an insurance obtained in the debtor's name, to the extent of the 
creditor's interest. 4 Thna, where a mortgagor covenants to keep 
the premises insured for the benefit of the mortgagee, and obtains 
a policy of insurance in his own name, upon the happening of a 
loss the mortgagee has an equitable lien npon the fund payable 
nnder the policy. 5 

But the mere fact that one is a mortgagee of premises which 
the mortgagor has insured in his own name gives him no lien 
upon the money payable upon the policy. The contract of in- 
surance is a personal contract of indemnity between the insured 
and the underwriter. The mortgagor has an insurable interest, 
and he may insure for his own benefit ; and the mere fact that 
be is personally liable to pay a debt which is a lien upon the 
property insured does not affect his right to claim the full ben- 
efit of the insurance. A mortgagee's equitable right to claim 

1 Payne v. Wilson, 74 N. T. 348. T.yde v. Mjnn, 4 Sim. S05, 1 Mjlne * K. 

* Read v. Guillsrd, 2 Dumb. 633, S Am. 683, 689. 

Dec 696. * Vernon v. Smith, 5 B. & Aid. 1. 

* Welledey v. Welledej, 4 Mjlue A Cr. * Tbomu t>. Von Kipff, 6 Gill & J. 

Ml ; Ronndell «. Blear/, 2 Vera. 482 ; 372 ; Carter v. Kockntt, 8 Vaigw, 437, per 



54 



Walwortb, Cb. 



3igitiz eC by GOOgk 



ARISING FROM AGREEMENTS TO GIVE MORTGAGES. [§§ 80, 81. 

the benefit of such insurance arises only where he has a contract 
with the mortgagor for insurance as a further security. The 
mortgagee's equitable lien in such case rests wholly upon con- 
tract. 1 

80. Agreement to build and convey a mill as security. — 
A written contract was made by the owners of timber land for 
the sale of the standing timber at an agreed price, the purchaser 
agreeing to build a sawmill worth nine thousand dollars upon a 
forty-acre tract, the title to which the vendors were to convey to 
him. It was also agreed that the purchaser might mortgage the 
mill site and mill to a third person for the sum of sixty-five hun- 
dred dollars, and should give a second mortgage to the vendors 
to secure the performance of the contract. The purchaser, by 
means of the contract, borrowed about ten thousand dollars, and, 
after the mill was built, conveyed the mill and mill site to the 
lender by way of mortgage to secure the advances, before the 
vendors had conveyed the title of the mill lot to the vendee. It 
was held that under the circumstances the mortgagee was equi- 
tably entitled to a lien upon the mill lot, bnt that the amount 
of such lien could not exceed the sum mentioned in the contract. 3 

81. For debt omitted from mortgage by mistake. — An 
equitable lien cannot be claimed for a debt omitted by a debtor 
in securing his creditor by a chattel mortgage for the supposed 
amonnt of his indebtedness. Thus, where personal property was 
exchanged for land of less value, and the difference in value was 
secured by a chattel mortgage upon the personalty exchanged, 
and it was afterwards discovered that the land was subject to 
taxes for a considerable amount which the mortgagor should have 
included in the amount of his mortgage, it was held that the 
mortgagee was not entitled to an equitable lien upon the goods 
for the amount of such taxes. Certainly such a lien will not be 
established as against other creditors of the mortgagor after his 
insolvency. 8 The mortgagee might have ascertained at the time 
of the transaction whether the taxes had been paid, had he exer- 
cised ordinary care and diligence. The mortgagee having chosen 
to take, without examination, the statement of the mortgagor and 
his covenant in his deed of the land, a court of equity will not 

> Nrale >. Rcid, S Dow. & By. IBS ; * Hubbard t>. Bellow, 10 Fed. Hep. 
Carter ». Bockett, 8 Paige, 487 ; Joum on 849. 

Mortgage*, I 401. ' Chamberlio e. Pelt*, 1 Ho. App. 183. 

55 



3igitiz eC by GOOgle 



§§ 82, 88.] IQU1TABLE URNS. 

give him relief. Whether, in case the mortgage note had by 
fraud or mistake been made for an amount leas than a certain 
liquidated sum which by agreement the mortgage was to secure, 
the mortgagee would have an equitable lien upon the proceeds uf 
the goods in the handa of an assignee for the benefit of creditors, 
is a question which the court did not consider. 

82. A covenant or agreement of a purchaser of land to 
pay a debt which is supposed to be a lien on the land binds 
the land with a trust for the payment of Buch lien. Thus, a 
debtor confessed judgment to bis creditor, but by mistake the 
judgment was not docketed in the county where the debtor's 
land was situated. The debtor afterwards sold the land to one 
who agreed to pay the supposed judgment lien as a part of the 
consideration. Afterwards, on learning that the judgment had 
not been docketed so as to make it a lien on the land, the 
purchaser refused to pay it. On a bill filed by the creditor 
against the purchaser, it was held that the latter took the land 
charged with an equitable lien or trust for the payment of the 
judgment; and the fact that the amount of the judgment was 
greater than the parties supposed was held to constitute no 
defence. 1 

An agreement, not under seal, given by a grantor of land at 
the time of the conveyance, stipulating that he would support 
and maintain the grantor, and pledging for that purpose the 
product of the land, and, should that prove insufficient, appropri- 
ating the entire fee, is an equitable lien upon the land in the na- 
ture of a mortgage. 3 

83. A verbal contract by one person to pay the debts of 
another, who should thereupon convey to the former certain 
lands, is void under the statute of frauds, and can support no 
rights, either legal or equitable.* IE a party pays money under 
such a void contract, he may, perhaps, recover it back in assump- 
sit ; but a court of equity will not create a lien upon real estate 
in favor of the party paying, unless, from the nature of the trans- 
action, rights have sprung up which ought to be held binding 
upon the specific property.* That the parties to such contract 

1 Ilnwrlj p. Bockor, 4 N. T. 169. 

* Chaw ». Peck, 21 N. T. 581. 

* Kelly p. Kdlj, 64 Micb. SO, 19 H 
Rep. 980. 

66 



3igitiz eC by GOOgle 



ARISING IK FAVOB OF CIED1TORS OF CORPORATIONS. [§ 84. 

are father tmd son does not afford any equitable ground for de- 
olaring a lien. 

V. Anting in favor of Creditor* and Stockholders of Corpora- 
tions. 

84. The creditors of a corporation have an equitable lien 
upon ite capital stock for the payment of its debts. 1 When 
debts are incurred a contract arises with the creditors that the 
capital stock shall not be withdrawn or applied, otherwise than 
upon their demands, until these are satisfied. " If diverted, they 
may follow it aa far as it can be traced, and subject it to the pay- 
ment of their claims, except as against holders who have taken 
it bond fide for a valuable consideration and without notice. It 
ia publicly pledged to those who deal with the corporation, for 
their security." 3 Therefore a corporation is not allowed to inju- 
riously affect the rights of a creditor by purchasing its own stock 
and retiring it. Every stockholder is conclusively charged with 
notice of the trust character which attaches to its capital stock ; 
and, therefore, if a stockholder takes from the corporation other 
property in exchange for such stock, he takes such property sub- 
ject to an equity in favor of a creditor of the corporation to have 
the property in place of the stock applied to the payment of the 
debt to himself.* 

The creditor of a corporation has also an equitable lien upon 
its property and assets ; and if the corporation distributes these 
among its stockholders, leaving a creditor unpaid, he may, after 
obtaining judgment against the corporation, and the execution 
has been returned unsatisfied, maintain a creditor's bill against 
a stockholder to reach whatsoever he has received in the distribu- 
tion.* But as against a prior attaching creditor of the corpora- 
tion no superior equitable lien exists. 6 

A chum of the corporation against a stockholder for his unpaid 
subscription for shares is an asset of the company, and a creditor 

1 Banger t>. Upton, 91 U. 8. 56 ; Saw- ■ Clapp b. Peterson, 104 HI. 36. 

jer b. Hoag, IT WalL 610; Bartlatt v. * BartUtt o. Drew,5TN.T. 587; Has- 

Drew, SI N. Y. 5ST ; Hatting* r. Drew, tings b. Draw, 76 H. T. 9. 

76N.T. 9; Clapp».Pe»non,l« 111. S6; * Jonas v. Bank, 10 Colo. 464, U Pat 

Hamas v. Britton, SS Mo. 549 ; QUI v. Rep. 87S ; Breene b. Merchants' a H. 

BaUf , TS Ho. 424. Bank, 11 Colo. 97, 17 Pat Rep. 880. 

* Sanger b. Upton, 91 U. 8. 56, 60, par 
Swavna, J. 

67 



3igitiz eC by GOOgk 



§ 85.] EQUITABLE LIENS. 

has the same right to look to it as to any other asset of the com- 
pany, and the same right to insist upon its payment as upon the 
payment of any other debt due the company. 1 

86. Lien of creditors of a corporation upon its property 
transferred to another corporation. — A corporation to which 
all the property of another corporation is transferred, which is 
thereupon dissolved without providing for the payment of its 
debts, takes the property subject to a lien in favor of the cred- 
itors of the old corporation to the amount of the property trans- 
ferred. 3 Any arrangement whereby one corporation takes from 
another all its property, so that the old corporation is de- 
prived of the means of paying its debts, and is enabled to dis- 
solve its corporate existence and place itself practically beyond 
the reach of creditors, is unconscionable unless the new corpora- 
tion pays the debts of the old. It matters not whether the stock- 
holders of the two corporations are the same or different, only 
that the equity is all the stronger where the stockholders of both 
are the same. Equity certainly cannot permit the owners of one 
corporation to organize another, and transfer from the former to 
the latter all the corporate property, without paying all the cor- 
porate debts.* 

A life insurance company, being about to close up its business, 
reinsured its policies in another company, to which it assigned 
certain bonds for the protection of sureties upon an indemnify- 
ing bond, under a contract that, after the liability of the sureties 
should be at an end, sncb bonds should be apportioned among 
the stockholders of the company effecting the reinsurance. It 
was held that the bonds became the property of the stockholders 
&b against all the world, except the creditors of the company ; 
but that in favor of snch creditors they constituted a trust fund 
for the payment of the debts of the company, and in the hands 
of such stockholders, or of any depositary, such bonds were sub- 
ject to an equitable lien in favor of the creditors, which might 
be enforced upon the failure of the company reinsuring to com- 
ply with its contract.* 

1 Sanger v. Upton, 91 U. S. SS, 60. " Hiberaia Ins. Co. v. St. Louis & N. 0. 

1 Brum v. Merchants' Mm. In*. Co. 16 Tiansp. Co. 13 Fed. Rep. 516, per Mc< 
Fed. Hep. 1*0 ; Hibernia Ioa. Co. v. St. Crary, C. J. 
Louis & N. O. Tramp. Co. 13 Fed. Rep. » Heman v. Britton, SB Ho. M9. 
S16; Harrison t>. Union Pacific Ry. Co. 
13 Fed. Rep. 532. 

58 



3igitiz eC by GOOgle 



ARISING IK FAVOR OP CREDITORS OF CORPORATIONS. [§§ 86, 87. 

83. Lien of creditors of a corporation upon Its property 
transferred to another corporation (continued^). And so where 
the stockholders of a corporation which is in debt transfer all 
its assets to another corporation in consideration of receiving stock 
of such other corporation, and of its assuming the liabilities of 
the old corporation, a creditor of such old corporation has a lien 
upon the property so transferred which is superior to that of a 
mortgagee of the property made by the new corporation, if the 
mortgagee had notice of the debt at the time of taking the mort- 
gage. 1 Treat, J., delivering the opinion, said; "The transferred 
assets were greater than the assumed obligations by the new 
corporation. Hence all persons subsequent in interest, with no- 
tice of such equitable lien, take subordinate thereto. The evi- 
dence discloses that, although the transfer from the old to the 
new corporation was not formally recorded, all the parties were 
sufficiently informed with respect thereto. The equitable doc- 
trine applies, namely, that they took subject to the prior equita- 
ble lien." 

87. The minority shareholders of a corporation have an 
equitable lien upon its property which the majority has sold 
to themselves, in breach of their fiduciary relation. " The ma- 
jority cannot sell the assets of the company, and keep the consid- 
eration, but must allow the minority to have their share of any 
consideration which may come to them. " a There is an implied 
contract in the association together of the members of a corpora- 
tion, that its powers shall be exercised only for the purpose of 
accomplishing the objects for which the corporation was formed. 3 
The majority of the members are in fact the corporation, so far 
as its management is concerned : they can bind the whole body 
of the associates in all transactions within the scope of the corpo- 
rate powers. But when they assume to control the corporation, 
they assume the trust relation occupied by the corporation towards 

1 Blair p. St. Louis, Ac B. B. Co. 21 telling company do not (hereby acquire 

Fed. Rep. 148, affirming S3 Fed. Rep. 36 ; an equitable lien upon the properly told 

Fogg v. St. Loots, fa.ES.Ci). 17 Fed. for the payment of their claims, but they 

Hep. 871. merely acquire the right to look for pay- 

The case of Herrey ». 111. Midland By. ment to the pnrchating company. 

Co. 38 Fed. Rep. 169, ii in contradiction * Meniere. Hooper'* Telegraph Worka, 

of this view. It la there held that, where 9 Ch. App. Caa. 35D, 35*, per Melliah, 

a railroad company pnrch&aei the prop- L. J. 

ertj of another railroad company, and an- * Abbot v. American Hard Rubber Co. 

•uraea it* indebtednesa, creditors of the 33 Barb. 578. 

69 



jipismb, Google 



§ 87.] EQUITABLE LIENS. 

its stockholders. 1 "Although stockholders are not partners, nor 
strictly tenants in common, they are the beneficial joint owners 
of the corporate property, having an interest and power of legal 
control in exact proportion to their respective amounts of stock. 
The corporation itself holds its property as a trast fund for the 
stockholders, who have a joint interest in all its property and 
effects, and the relation between it and its several members is, 
for all practical purposes, that of trustee and cettui que trust. 
When several persons havea common interest in property, equity 
will not allow one to appropriate it exclusively to himself, or to 
impair its value to the others. Community of interest involves 
mutual obligation. Persons occupying this relation towards each 
other are under an obligation to make the property or fund pro- 
ductive of the most that can be obtained from it for all who are 
interested in it ; and those who seek to make a profit out of it, at 
the expense of those whose rights in it are the same as their own, 
are unfaithful to the relation they have assumed, and are guilty 
at least of constructive fraud. Among the disabilities imposed 
by courts of equity upon those who occupy a fiduciary relation 
towards others, respecting property which is to be administered 
for beneficiaries, is that which precludes the fiduciary from pur- 
chasing the property on his own account, without such & full and 
complete understanding in advance with the beneficiaries as will 
repel all inferences that the fiduciary intended to derive any 
peculiar advantage for himself. The fiduciary cannot retain his 
bargain by showing that the sale was public, or that the price was 
fair, or that there was no intention on his part to gain an unfair 
advantage. Where he has. a duty to perform which is inconsist- 
ent with the character of a purchaser, he cannot divest himself of 
the equities of the beneficiaries to demand the profits that may 
arise from the transaction." 2 

An equitable lien may be decreed to exist in favor of such 
minority shareholders upon the property of the old corporation iu 
the hands of the new corporation to the extent of the value of the 
property which they have been deprived of. Such lien is prior to 

1 Ervin v. Oregon By. & Nit. Co. 37 * Per Wallace, J., in Ervin e. Oregon 
Fed. Rep. B25, S3 Blatch.517. See, alto. By. tNar, Co. i7 Fed. Rep. 6S5. 
Atkins v. Wabaih, St L. a P. By. Co. !9 
Fed. Rep. 161, 31 Am. L. Ber. 104. 
60 



3igitiz eC by GOOgle 



ARISING IN FAVOR OF CREDITORS OF CORPORATIONS. [§§ 88, 89. 

the Hen of the stockholders of the new corporation, bat is subject 
to the lien of the holders of its mortgage bonds. 

88. The shareholders of a corporation have an equitable 
lien upon a fond specially deposited for the payment of a 
dividend declared by the company. Each shareholder has a lien 
upon the fund to the extent of the dividend to which he is enti- 
tled. The Erie Railway Company, having declared a dividend 
of one per cent, upon its stock, deposited the money to pay the 
same with Duncan, Sherman & Co., bankers. Some three months 
afterwards the money remaining with the bankers was withdrawn 
by the company, and subsequently passed, with its other property, 
to a receiver of the road. Upon the application of a stockholder 
entitled to such dividend, it was held that be had an equitable 
lien upon the fund deposited for its payment, and that this lies 
followed the fund into the hands of the receiver, who held it as 
trustee for the benefit of the stockholders who had not been 
paid. 1 

In like manner a lien was declared in a case where an insur- 
ance company had declared a dividend, and given notice of it to 
the stockholders, and had prepared checks upon a fund in bank 
for delivery to the stockholders as they should call. A great 
fire occurred before all the stockholders had been paid, whereby 
the company was rendered insolvent and its property passed into 
the hands of a receiver. The dividend was regarded as so far 
appropriated to the stockholders that they were entitled to it as 
against the general creditors of the company. 3 

89. Liens may be created by the assumption of a mortgage 
or other lien upon property. An equitable lien is created in 
behalf of a creditor by an agreement made with the debtor by a 
third person whereby the latter undertakes to pay the debt, or 
to secure the payment of it. A common instance of the creation 
of Buch a lien occurs where the consideration for the conveyance 
of property is the assumption of the payment by the vendee of 
an existing lien upon the property, or debt of the vendor in re- 
spect of the property.* Thus, where two or more railroad com- 

'/■nLt Blanc, 14 Hon, 8, affirmed ter v. Vanmeteri, 3 Graft. 148 ; Clyde e. 

75 N. T. 598. SimpMn, 4 Ohio St. 445 ; Nichols v. GIot- 

1 LeRoj b. Globe In>. Co. a Edw. Ch. er,4IInd.34; Hanii e. Fly, 7 Paige, 411; 

•57. HaJlatt v. Hallett, 2 Paige, 15. 

1 June* on Mortgages, f 162; Van me- 

61 



, Google 



§§ 90, 91.] EQUITABLE LIENS. 

panies consolidate, and part of the consideration for the transfer 
of the property of one of the roads to the consolidated company 
is the payment by it of certain unsecured equipment bonds issued 
by the company making the transfer, and the consolidated com- 
pany agrees to " protect " such bonds, the bondholders thereby 
acquire an equitable lien on the property of the consolidated com- 
pany for the payment of their bonds. 1 

90. A consolidated corporation may be subject to liens ex- 
isting against original corporation. The holder of the bonds of 
a railroad corporation, which are a specific lien upon the income 
of property which has passed by consolidation from the hands of 
the original debtor corporation to another corporation, can enforce 
bis lien against the latter corporation when it receives such in- 
come. He has a lien on the income of the property in whoseso- 
ever hands it may come with notice of the lien, and he has the 
right to enforce this lien independently of any proceeding he 
may have at law to reach other property in the hands of tbe 
debtor corporation. He has the right to pursue the debtor, or to 
enforce his lien against the income; or he may pursue all his 
remedies at the same time. 3 But the lien does not attach in 
favor of a stockholder of a railroad company upon its consolida- 
tion with another company, though the consolidated company 
gave him notes for his interest in the old company instead of 
stock, which the agreement of consolidation provided should be 
issued to the stockholders in the old corporation. The stock- 
holder had no interest in the lands of the old company. These 
belonged to the corporation, and tbe stockholder merely had 
an interest in the corporation. The corporation, and not the 
stockholders, sold and transferred the lands to the consolidated 
company. An individual stockholder had nothing to sell but his 
stock. 8 

•91. But if the bonds of the original corporation vers 
neither a lien upon its property nor its income, tbongb it is 
agreed that they shall be protected "as to tbe principal and 
interest as they shall respectively fall due" by the consolidated 
company, and the bonds were issued after the passage of statutes 

1 Tjser, e. Wabash liy. Co. 11 Bit*. • Crow r. D. A S. W. B. Co. SB Lnri, 
310. SI, IS N. W. Bep. 71. 

* Bitten e. Union Piwifia Rj. Co. 16 
Bcp. 1». 



3igitiz eC by GOOgle 



THE ENFORCEMENT OF. [§§ 92, 93. 

authorizing the consolidation, the holders have no lien npon the 
property of the consolidated company, nor npon the proceeds of a 
sale of such property made under a mortgage executed by the 
consolidated company. The agreement to protect the bonds cre- 
ated only a personal obligation to see that they should be paid at 
maturity. It was claimed also that the payment of the bonds 
was a part of the consideration of the transfer, and that the 
case came within the principle of a vendor's lien for unpaid pur- 
chase-money. But the court, by Mr. Justice Gray, upon this 
point declared : " We are unable to perceive any analogy be- 
tween the two cases. The doctrine of vendor's lien applies only to 
sales of real estate. The consolidation of the stock and property 
of several corporations into one is not a sale ; and it did not affect 
real estate only, but included franchises and personal property." 1 
92. An equitable lien cannot be declared against railroad 
property in the hands of a receiver, to secure the payment 
for necessary supplies famished the company before the ap- 
pointment of the receiver, as against a mortgage then subsisting 
upon the property. 8 The creditor in such case only holds the 
relation of a general creditor of the corporation, with no lien 
upon anything to secure his claim. The mere act of appointing 
a receiver to preserve the property pendente lite does not change 
the character of the debt from an unsecured to a secured claim. 
The court may require the receiver to pay the current expenses 
of the road out of the current earnings before anything is paid 
upon the mortgage. The current running expenses may include, 
by order of court, expenses incurred within a certain time prior 
to the date of the appointment of the receiver. But if the cur- 
rent earnings are insufficient to pay the current debts incurred 
within the time specified, the court will not declare a debt not 
incurred within that limited time a lien upon property previously 
pledged to the payment of the mortgage. 

VI. The Enforcement of Equitable Lien*. 
93. A court of equity is the appropriate tribunal for en- 
forcing an equitable lien. 3 " In equity there is no difficulty 

> Wabash, Sl LouLt ft Pac Rj. Co. f. Oljpbatit t>. Si. Loni* Ore ft Steel Co. 28 

Ban, 1U U. 8. 587, s Sup. Ct. 1081. Fed. Rep. 739. 

* United State* Trut Co. o. New York, * Valletta v. Whitewater Valley Canal 
W. 8. ft B. B, E. Co. IS Fed. Rep. SOD; 



* Google 



§ 94.] EQUITABLE LIENS. 

in enforcing a lien, or any other equitable claim constituting a 
charge in rem, not only upon real estate, but also upon personal 
estate, or upon money in the bands of a third person, whenever 
the lien or other claim lb a matter of agreement, against the party 
himself and his personal representatives, and against any per- 
sons claiming under him voluntarily or with notice, and against 
assignees in bankruptcy who are treated as volunteers; for every 
such agreement for a lien or charge in rem constitutes a trust, 
and is accordingly governed by the general doctrine applicable to 
trusts." 1 

A court of equity, whose powers ere limited to certain matters 
strictly defined, may be without jurisdiction to enforce an equi- 
table lien. Such was formerly the case in Massachusetts when 
there was only a very limited equity jurisdiction. But wherever 
there is full equity jurisdiction — that is, an equity jurisdiction 
coincident and coextensive with that exercised by the Court of 
Chancery in England — there is jurisdiction for the enforcement 
of any equitable lien or charge ; a and, unless there be a special 
remedy provided by statute, this jurisdiction should be invoked 
for the enforcement of any equitable lien. 

The usual mode of enforcing an equitable lien is by an order of 
sale of the property to which it is attached. 8 

04. A lien at law or by statute cannot be enforced in 
equity. Except as remedy in equity is expressly provided by 
statute, a court of equity can enforce an equitable lien, either 
upon a legal or equitable estate in, lands; but a lien which is 
purely legal, which is created by statute and is dependent upon 
statutory provisions for its enforcement, cannot be aided in equity 
if the lien fails at law.* In the absence of statutory provisions 
no lien will be foreclosed in eqnity except in conformity with 
established rules of equitable jurisprudence. Thus, a general lien 
of a judgment will not be turned into the specific lien of a decree 
in equity and enforced by a sale under such decree. Equity will 
not interfere where there is a full and complete remedy by stat- 
ute. The foreclosure of a lien is either a statutory or an equi- 

Co. 4 McLean, 192; Ridgely ■>. Igtehart, 99, 106, 1 N. T. St. Rep. 169; Price v. 

3 Bland, MO. Palmer, 23 Una, 501, SOT. 

1 Fletcher v. Morey, 2 Story, 555, 565. ' Buchan f. Sumner, 2 Barb. Ch. 165, 

1 Fletcher v. Morey, 2 Story, 555. 47 Am. Dec SOS ; Douglass r. Hueton, 6 

1 Perry v. Board of Missions, 102 N.Y. Ohio, 162; Howe Machine Co. *. Miner, 
28 Kans. 4-il. 
64 



3igitiz eC by GOOgk 



THE EBFOBCKMKKT OP. [§ 95. 

table proceeding. At ltiw there is no remedy beyond retaining 
possession. 

95. If the owner of property subject to an equitable lien 
disposes of it, in hostility to the lien, to a bond fide purchaser 
without notice of the lien, so that the Hen is destroyed, the lienor 
has a cause of action against the person bo selling the property for 
the restoration of such equitable lien. 1 This right ia important 
where the lienor bas no personal claim against such owner, as 
where by contract one is to bare a share of the property or fund 
recovered by another, and has by a contract a lien upon the prop 
erty or fund so recovered. In such case the creditor's only claim 
is against the fund recovered, and, it being a lien by contract, its 
maintenance does not depend upon possession. It is an equita- 
ble charge enforcible only in a court of equity. The person who 
recovers the fund or property and holds it in his own name can 
transfer it to a purchaser for value and in good faith without no* 
tice of the lien ; but in so doing he inflicts a special injury upon 
the lienor, for which an action lies for damages for the destruc- 
tion of the lien, or, perhaps, an action in the nature of an action 
fur money had and received for the proceeds of his interest. The 
cause of action in either case arises at the time of the wrongful 
sale of the property, and the statute of limitations commences to 
run from that time. 1 

1 Hustal ». iDgraham, 7S N. T. 151 ; directed to invest the money in certain 

Bale b. Omaha Nat. Bank, 49 N. Y. 626, bunds, and this he did. A suit to cstab- 

M N. T. 550, 555; Homy v. Elliott, SI lilh the lien was dismiued, nnd the re- 

J.a S. 331, US N. Y. 124, 1ST, aa S. E. ceirer tu directed to pa; the funds to 

Btp.4?5. the claimant. The receiver, under instruc- 

■ Hovey u. Elliott, SI J. & 3. SSI, 118 tions of the court, turned orer the bonds 

N. Y. 134, 33 N. E. Rep. 479. In this to the claimant, who sold them tu pur. 

ewe ihe plaintiff* made an agreement chaser* who were chargeable with notice 

■ith a pcrtun who bad a large claim pend- of the plaintiff's claim to a lien ; and theae 

icji before the mixed commission on Brit- purchase™, in turn, auld them to bonajidt 

ah and American claim*, under the treaty purchaser* wbo bad no nutice of the claim. 

0(1971, for the value of ctrLain cotton, by Thereafter the judgment dismissing the 

■hich the plaintiffs were to aid the claim- action to establish the lien was, on appeal, 

ant, and he was to pay them for their aer- reieraed, and judgment was entered that 

'ire* twenty-flse per cent, of any amount the plaintiffs had a lien on the award, or 

■fluwtd on the claim, and this amount was the proceed* thereof. It was held that 

■sue a lien upun any money, draft, or this last judgment created no lien, for 

trkieuce of indebtedness, which might be there was then no property on which a 

paid ur issued thereon. A large sum was lien could be established: but it eatab- 

ncoiered, aud a receiver was appointed lished the fact that a lien had existed on 

for una half of the award, and he was the bonds before they were sold to bent 



jipismb, Google 



§ 96.] EQUITABLE LIENS. 

A purchaser of property in which there is an equitable lien, 
when chargeable with knowledge of it, is liable to the lien-holder 
for the amount of hia Hen. 1 

96. Priorities. — A specific equitable lien upon land is pre- 
ferred to a subsequent judgment lien. 1 If the equitable lien and 
the judgment lien come into existence at the same time, the former 
is not entitled to preference in case it was created to secure »u 
antecedent indebtedness, with no new consideration advanced at 
the time on the faith of it. 3 

Subsequent purchasers and creditors are bound by equitable 
liens if they acquire their rights with either actual or constructive 
notice of them. Thus a purchaser of land may, by written agree- 
ment, create an equitable lien in favor of a surety upon the pur- 
chase-money note for it who pays the note, and such lien will pre- 
vail against a creditor with notice. 4 In like manner if a purchaser 
of land borrows money to pay the purchase-money and agrees 
with the lender that be eball have a purchase-money lien upon 
the land, the purchaser has an equitable lien for the money 
advanced which is superior to the rights of creditors or purchasers 
with actual notice. 6 

A prior equitable lien is preferred to a mechanic's lien upon the 

fide purchasers without notice and the lien (mount sufficient to ssti-fy their lien, and 

destroyed ; that the purchasers of the concurrently in time with the arising of 

bonds with notice of the claim of lien such duty the right to demand iia perform- 

were liable to action for their wrongful set ance accrued; that prior to said decree 

in destroying the lien, but that the cause the plaintiffs' lion was ►imply equitable, 

of action accrued at the time of such to be enforced only by suit inequity ; (hat, 

wrongful sale, and was barred by the six therefore, during the pendency of the for- 

years' limitation under the statute of lim- mer action the statute of limitations did 

Itations. not run. 

This holding of the court below waa > Horsy c. Elliott, lis N. T. 124, 23 N. 

upon appeal, 118 N. T. 121, declared erro- E. Rep. 475. 

neons ; that the purcliasera of the bond* * Stevens v. Watson, 4 Abb. Dec 90S. 

having made the purchase pendente lilt * Dwiglit v. Newell, 3 N. Y. 185. 

were chargeable with knowledge of the * Bailey o. Welch, 4 B. Hon. 844. 

plaintiffs' claim, and were bound by the * Trimble c. IMckett (Ky.J, 19 S. W. 

result as effectually as If the; had been Rep. 591. The agreement was in a note 

made parties to the snit, aud for the pur- a* follows: "On 1 promlie to pa; 

poses of the lien might be deemed to hare P. dollars as purchase- money fur 

held the bonds, and upon the aale thereof nished bj P., and to have the same effect 

to hold the proceeds in trust for the plain- as though the land had been bought from 

tiffs ; that when the decree was obtained P., it being the farm I now lire on." 
they were bound to pay the plaintiffs an 



3igitiz eC by GOOgle 



THE ENFORCEMENT OP. [§ 96. 

same property, though the claimant under the latter had no notice 
of the equitable lien at the time his lien took effect. 1 

But a specific equitable lien upon lands is not preferred to a 
prior lien by judgment thereon ; and this is so although the lands 
be acquired by the debtor after the recovery of the judgment. 3 

A mechanic's lien is subject to an equitable lien existing at 
the time the claimant files bis notice of claiming a lien. Until 
he files his notice he has no greater equities than other general 
creditors, and is affected by all equities existing at that time in 
uxtct of others dealing with his debtor. His lien attaches only 
to the estate and interest of the debtor as it then exists, which 
is the estate and interest left to the debtor after satisfying prior 
liens and equities. 8 

■ Fajna v. Wilton, 74 N. T. 348, affirm- 
iiigll Hon, 301. 

6T 



3igitiz eC by GOOgk 



CHAPTER III. 

LIBNS BY STATUTE. 

97. Introductory. — By recent legislation many of the liens 
recognized by the common law, and many of those asserted in 
equity, have been materially enlarged in their scope, or made 
more effectual by provisions for their enforcement; while only 
in one instance, that of distress for rent, has the common law 
right been modified or restricted. But modern legislation has in 
many instances gone beyond the liens previously recognized at 
law or in equity, and haB created a great number of new liens ; 
and the tendency of legislation in this country is to extend still 
further this remedy for the protection of all persons who labor 
or supply materials for others, and for the protection of the 
State and of municipal corporations in the enforcement of taxes 
and other claims. Of the liens created for the protection of 
individuals, those known as " Mechanics' Liens" 1 are the most 
familiar; for statutes of this kind have been enacted in all, or 
nearly all, the States and Territories. Laborers upon planta- 
tions are protected by agricultural liens upon the crops raised. 
Laborers and contractors upon railroads are protected by liens 
upon the roads. In the mining States liens ate given to miners 
and others upon the mines and their products. In States where 
lumbering is an important industry, lumbermen are protected by 
liens upon logs. Livery-stable keepers and agisters of cattle are 
protected by liens. Corporations are giving liens upon the shares 
, of their members for debts due from them. In many States 
liehs have been given to landlords in place of the common law 
remedy of distress. In many States, also, attorneys have been 
given complete protection by effectual liens upon judgments ob- 
tained by them, and upon the causes of action, in place of the 
somewhat indefinite and restricted rights they had under the 
general equity jurisdiction of the courts. 

> See the dupten on Mechanics' Liens. 

68 



jipismb, Google 



LIENS BY STATUTE. [§§ 98, 99. 

For the details of legislation upon alt these subjects, and its 
application, reference may be had to the chapters treating of 
these particular matters. 

In the different States many different liens have been created, 
which it is impossible to notice in detail in this treatise. The 
law governing them, so far as it is not declared by the statutes 
creating them, may generally be determined by analogy to the 
more common statutory liens, the construction and interpreta- 
tion of which are settled by adjudications. Only a few of the 
statutory liens, other than those before referred to, which are 
made the subjects of separate chapters, will be briefly men- 
tioned in this chapter. 

98. Taxes are generally made a lien upon, the real estate 
assessed, but a right of prior payment does not constitute 
a lien. A statute which provides that taxes shall be preferred 
to all payments and incumbrances, and shall be a lien upon the 
real estate of the person assessed, does not create a lien upon his 
personal property. A right of prior payment is a preference in 
the appropriation of the proceeds of the debtor's property. It is 
not a qualified right which may be exercised over his property. 
It does not attach to the specific article of property. Hence, if 
the personal property of the person assessed be attached or 
assigned before it is seized by the tax-collector, the right of prior 
payment given by the statute is lost. 1 

99. A statutory lien in favor of the State upon the land 
of a collector of taxes and his sureties attaches not only to the 
lands owned by him at the time of the approval and recording of 
bis bond, but also to after-acquired lands, the same as in the case 
of a judgment. 1 The lien of the State is not discharged upon 
lands sold by the collector after the approval of his bond, although 
the legislature has extended the time of payment of taxes to the 
collector. Sureties upon the collector's bond, who have given 
written consent to such extension, are not discharged thereby, 
and, upon answering for the collector 's default, are subrogated in 
equity to the lien of the State upon his lands, the lands he has 
conveyed, and the lands he has acquired since the approval of bis 
bond* 

Such a lien is a general lien like the lien of a judgment, and is 
* Crawford v. RfchcBon, 101 III. 351 . 



3igitiz eC by GOOgle 



§§ 100-102.] LIENS BT STATUTE. 

subject to tbe equity of third persons. It is subject to a prior 
unrecorded mortgage, in accordance with the well-established 
doctrine of equity that prior equitable interests in a specific piece 
of real property have priority over a general statutory lien cre- 
ated subsequent to the transaction with the owner, which gives a 
party an interest in the particular piece of land in question. 1 

100. A lien is sometimes given to a State upon tho prop- 
erty of a defendant in a criminal prosecution for tbe pay- 
ment of the costs of the prosecution in case of conviction, from 
the time of the arrest or indictment found; and such lien can- 
not be divested by any subsequent assignment by the defendant, 
though this be an assignment to counsel to assist him in his 
defence. 2 

101. Statutes authorizing cities and towns to make im- 
provements in streets generally provide that the expense thereof, 
or some part of such expense, may be assessed upon the land 
fronting upon such streets, and each assessments are made a lien 
upon the property. 8 

102. Water rates are sometimes made a lien upon the 
premises where the water is used. An act which makes wa- 
ter rates a charge upon lands in a municipality, with a lien prior 
to all incumbrances, in the same manner as taxes are, gives them 
priority over mortgages on such lands made after the passage of 
the act, whether the water be introduced on the mortgaged land 
before or after the giving of the mortgage, 4 if tbe mortgage 
was made after the enactment of the statute making such rates 
a lien upon the property. 6 Such an act does not deprive the 

1 Crisfie] t>. Murdock, 8 N. Y, Snpp. * Prov. Inst, for Savings v. Jersey City, 

593. IIS U. S. 906, S Sop. Ct. SIS. The court, 

1 M'Knlgbt v. Spain, 13 Mo. 534. by Bradley, J., eron My chat they are not 

* Fitch v. Creighlon, 34 How. 159. In prepared to assort that an act giving pref- 

a mil by a contractor to enforce a lien for erence to municipal water rates over ax. 

street improvement on the abutting lota, isting mortgage* or other incumbrance! 

tbe comulnint is sufficient if it pleads all would be unconstitutional : for tbe pro- 

the acta done by the municipal officers, Tiding of water for a city is one of the 

and all facts essential to show their au> highest functions of municipal gorern- 

thoriiy, and need not set forth their pro- mens, and tends to enhance the value of 

eentings, nor incorporate, by reference or all real estate within its limits; and the 

otherwise, the contract under which the charges for the use of the water may well 

work was done, nor any other instrument, be entitled to rank as a first lien, without 

except tbe final estimate or assessment, regard to existing Mens. 

Tan Sickle v. Belknap, 139 lad. 558, 38 * Traelsnd v, Jersey City, 37 H. J. Eq. 

N. E. Rep. 305. 574. 

70 



'Digitize by GOOgk 



LIENS BT STATUTE. [§§ 103, 104. 

mortgagee or Ilia property without due process of law. The 
mortgagee, in such case, takes the mortgage subject to the stat- 
ute. He voluntarily consents to making the water rates a first 
lien npon the property in accordance with the statute. 

A lien may be given for tbe expense of placing a water-meter 
in a building, and the charge for extra consumption of water 
over and above tbe quantity covered by the usual water rate for 
the building may be made a lien upon the land. 1 Such a lien is 
given by virtue of the taxing power of the State. 

103. Liens npon animals damage feasant. — By the com- 
mon law, a person finding upon his land animals belonging to 
another, doing injury by treading down his grass or grain or the 
like, was entitled to distrain them until satisfaction should be 
made him for his loss. 1 In the American States this right has 
existed from a very early period in the history of the country. 
It is now generally conferred by statutes which also prescribe and 
regulate the remedies for enforcing the right. Such statutes, it 
has been judicially determined, are not in excess of the legisla- 
tive power, or in violation of any principle of constitutional law. 
These statutes, in fact, create a lien in favor of the injured party 
npon tbe animals found trespassing, and provide remedies for en- 
forcing the lien. Such remedies are clearly within the province of 
legislation. It is competent to provide that the owner of the lands 
shall be indemnified for the actual damages sustained, and shall 
be paid a reasonable compensation for keeping tbe animals and 
for making tbe seizure. The euma so awarded are not in the na- 
ture of a penalty for the trespass, but merely indemnity to the 
party injured. The temporary seizure and detention of the 
property, awaiting judicial action, is not in violation of the con- 
stitutional provision directing that no person shall be deprived of 
his property without due process of law. 8 

104. Borne statutory liens differ from common law liens in 
not requiring possession to support them. The protection 
afforded at common law by possession is, in case of statutory 
Hens, afforded by notice to the owner, or by attachment of the 
property within a limited time. 4 A statutory lien without pos- 

i Law of New York, 1870, ch. 363, ■ Cook v. Gregg, 46 N. T. 439 J Rood 

§13; 1873, ch, 3.15, § 73; Moffat o. Hen- o. McCargar, 49 CaL 117. 

denon, 18 J.&S. ill. * Quimbj v. Haten, 54 Vl 131, per 

* 3 Black. Com. 7. Power*, J. 

71 



;y Google 



§§ 105, 106.] LIENS BY STATUTE. 

session may by force of the statute have the same operation and 
efficacy that a common law lien has with possession. 1 

105. The character, operation, and extent of the Hen must 
be ascertained by the terms of the statute creating and de- 
fining it; and the courts cannot extend the statute to meet 
cases for which the statute itself does not provide, though these 
may be of equal merit with those provided for. 3 Thus where 
a Hen for taxes is given by statute s to every agent, guardian, 
or executor who, being seised or having the care of lands, pays 
the taxes thereon for the benefit of the owner, iu order to main- 
tain such lien, he must show that he was seised of the land 
or had the care of it. It is not sufficient that he advanced the 
money for the payment of the taxes. A note given by the 
owner of land to his agent for money advanced for the payment 
of taxes, in which he declares that he recognizes the existence of 
tbe statutory lien, does not create a lien where none would exist 
by statute. 1 

It is, nevertheless, a sound rule of construction, that a statute 
giving a lien is regarded as a remedial statute, and is to be lib- 
erally construed so as to give full effect to the remedy, in view of 
the beneficial purpose contemplated by it. 6 

106. A statutory lien can exist only when it has been per- 
fected in the manner prescribed by the statute authorizing 
it. Thus, under an act which created a building association, and 
provided that the shares of stock should, from the date thereof, 
be a lien on the real and personal estate of the corporation, it 
was held that tbe mere payment of the subscription for shares, 
without their being actually issued, did not create a lien on the 
property of the association. 8 The subscriber became entitled to 
the rights of a stockholder in the association by such payment, 
but the lien did not necessarily flow from the relation of stock- 
holder to the association. It was necessary nnder the statute 
that the stock shonld be actually issued in order to create a lien 
which could be enforced against other incumbrancers, for the stat- 

i Beall ». White, 94 U. 8. 383, pa CHf- * Pmt v. Feild, 30 Ark. 600. 

ford, J. ; Gr«nt u. Whitwell, 9 lour*, • Eckh*nl v. Donohue, S Duly, 3M ; 

15!. Hudler ». Golden 3B N. T. 447 ; Weed n. 

• CopeUnd n. Kehoe, 67 Ala, S94 ; Rog- Tucker. 19 N. T. £9, 433. 

en v. Currier, 13 Gray, 139, 134, per Mel- ' Winston c. Kilpatrick, 5 Duly, 994 ; 
calf, J. affirmed in tbe- Court of Appeals, 1 N. Y. 

• Arkansas Dig. $ 5933. Week. THg. 5fi9. 

72 



3igitiz eC by GOOgle 



LIENS BT STATUTE. [§§ 107, 108. 

ate declared that the stock should be a lien only from the date of 
the certificate. 

107. A lien created by statute may be taken away or 
modified by a subsequent statute. 1 Such a lien is no part of 
the contract, but merely an incidental accompaniment of it. It 
derives its validity from the positive enactment, and, therefore, 
a subsequent statute modifying or removing the lien cannot be 
considered as in any manner impairing the obligation of the con- 
tract itself. " The lien is but a means of enforcing the contract, 
a remedy given bylaw; and, like all matters pertaining to the 
remedy, and not to the essence of the contract, nntil perfected 
by proceedings whereby rights in the property over which the 
lien is claimed have become Tested, it is entirely within the con- 
trol of the law-making power in whose edict it originated." 3 A 
repeal of a statute giving a lien is merely the taking away of a 
remedy afforded by the statute ; it does not impair the obligation 
of the contract. 

Thus, the lien of a judgment upon real estate ia purely statu- 
tory, and it is within the power of the legislature to abolish the 
lien at any time before it has ripened into a title by a sale. A 
statute abolishing such a lien does not take away any property, 
or affect the obligation of contracts, but simply affects a legal 
remedy.* 

108. The repeal of a statutory lien defeats the lien rem- 
edy, although at the time of the repeal the proceedings pre- 
scribed by the statute for enforcing the lien had been instituted 
and were pending in court. 4 The repeal of the lien remedy 
does not, however, impair any personal remedy the creditor may 
have by virtue of the obligation of the contract between the 
parties. The remedy which the law affords for the enforcement 
of contracts constitutes no part of the contract itself, and any 
change of the law which does not amount to a deprivation of all 
effectual remedy does not in any just sense impair the obliga- 
tion of the contract. A lien is only a cumulative remedy to 

> Froat b. ririty, 54 He. 349. Sec chap- Dec. 688 ; Gray v. Carle too, 33 Me. 4fll ; 

ter on Mechanic*' Lien*. Woodbury v. Grimes, 1 Colo. 100; Tew- 

* Frntt r. Il.ley, 34 He. 345, 351, per pleton e. Home, 8! III. 481; Smith r. 
Harrows, J. Bryan, 34 III. 364 ; William* v. Waldo, 4 

* Walton a. N. T. Central R. R. Co. 47 111. 364 ; Hall v. Bunle, 20 Ind. 304 ; 
N. T. 157. Martin it. Hewitt, 44 Ala. 418. See 

* Bangorr. Goding.SSHe. 73; H Am. $ ISM. 

73 



3igitiz eC by GOOgk 



§ 109.] LIENS BY STATUTE. 

enforce a contract, and is as much within legislative control as 
any other remedy afforded by law. 1 

But if a lien, be given by statute to be enforced as another 
statutory lien is enforced, the repeal of the remedy in the latter 
case does not repeal the remedy applicable to the former, if there 
be no words in the repealing act which include the former. It 
was so held where a statute gave a lien on animals for feeding 
and sheltering them, the lien " to be enforced in the same man- 
ner as liens on goode and personal baggage by innkeepers or 
keepers of boarding-houses." a Chief Justice Peters, delivering 
the judgment of the court, said: "That meant enforcement in 
the manner then existing, not as it might be in the future by a 
new enactment. A reference was the readiest way to describe 
tbe process to be employed for enforcement. The repeal of the 
process in the one case does not repeal the process in the other, 
there being no words in the act of repeal including the latter. 
Suppose the innholder's lien had been wholly abrogated, would it 
be pretended that the lien on animals would fall with it? There 
is no dependency between the two classes of liens or their enforce- 
ment." 

109. Other courts, however, hold that liens which have 
beoome fixed rights under the statutes oreating them can- 
not be taken away by repealing the statutes. If the lien arises 
directly upon the performing of labor, or the doing of any other 
act, the lien cannot be defeated by subsequent repeal. If the 
lien arises upon the taking of some preliminary step to enforce 
it, then the lien cannot be defeated after such step has been 
taken. 8 Thus, a mechanic's lien which has attached through the 
giving of notice, or otherwise complying with the statute, cannot 
be destroyed by the legislature by a repeal of the statute. The 
lien in such case has become a part of the obligation of the con- 
tract between the parties, which the legislature cannot impair. 4 

1 Templeton v. Home, S3 III. (91, per * Handel v. Elliott, 60 Tex. 145. The 

Scott. J. fact that the coottilniton of the Sinte de- 

1 Cullim v. Blake, 79 Me. S18 ; 9 Art. dared this lien was deemed an additional 

Rep. 358 ; Lord v. Collins, 76 Me. 443. reason why tbe statute providing for the 

■ Wabash & Erie Canal Co. o. Bean, enforcement of tbe lien should ba regarded 

S Black, 418 ; Streubel r. Milwaukee & as entering into and forming part of the 

Miss. It. B. Co. IS Wis. 67 ; Hallahan v. contract. See % 1558. 
Herbert, 11 Abb. Pr. N. S. 32K; Chown- 
ing v. Bamett, 30 Ark. 560. 

74 



3igitiz eC by GOOgk 



LIENS BT STATUTE. [_'§§ 110-112. 

Whenever a mechanic's lien is created for material furnished 
nnder a contract for the erection of a building, the right to the 
lien becomes a vested right at the time the material is furnished, 
and it is not within the power of the legislature to afterwards 
destroy such right by repealing the statute under which the right 
has accrued. 1 In like manner, where by statute a lien is acquired 
by performing labor in carrying on a quartz mill, a repeal of the 
statute after the lien has attached by performance of the work 
does not defeat the lien. 3 Upon this principle a lien is not af- 
fected by a homestead exemption, created by a statute subse- 
quently enacted, or by a state constitution subsequently adopted. 
To enforce such exemption as against an existing lien would be 
obnoxious to the objection of impairing the validity of contracts, 
and in violation of the Constitution of the United States. 8 

110. Revival of a lien. — A lien which has already expired by 
limitation is not revived by the enactment of a statute enlarging 
the time for perfecting each a lien. The legislature cannot create 
a cause of action ont of an existing transaction, for which there 
was no remedy at the time of the enactment.* 

111. Statutory liens are regulated by the law of the forum, 
and cannot be claimed by virtue of the law of another State. 6 
Not only is the enforcement of the lien dependent upon the law 
of the forum, bnt its existence also. 4 The statute has no extra- 
territorial operation. 7 The lien bas no binding operation in an- 
other State as against a purchaser of the property in that State 
in good faith for a valuable consideration. 

112. Statutory liens are in their nature legal rather than 
equitable, and legal rather than equitable proceedings are 
generally provided for their enforcement. A common form 
of remedy is a legal attachment. Yet in some States the statu- 
tory remedy is by an equitable action similar to an equitable 
action for the foreclosure of a mortgage. The jurisdiction of a 
court of equity invoked to enforce a statutory lien rests upon tbe 

1 W**Tcr b. Selli, 10 Kbds. 609 ; Hoff- ■ Swaiey v. Steamer Montgomery, IS 

Man t>. Walton, 36 Mo. 613. La. Ann. 800 ; Lee u. Creditors, 3 La. 

* In rt Hope Mining Co. 1 Saw. 710. Ann. SS9, BOO | Wickham b. Lerittone*, 

* Tomsend Barings Bank r. Epping, 11 La. Ann. T02; Ganae it. Bollard, 16 
S Woods, 390; Gnnn e. Barry, 15 Wall. La. Ann. 107. 

610. « Gaaw v. ButUri, 16 La. Ann. 107. 

* Steamboat Thompson v. Lewis, 81 ' Hanb v.Elaworth, 37 Ala. SS. 
Ala, 497. 

T6 



3igitiz eC by GOOgk 



§ 112.] LIENS BY STATUTE. 

statute, and can extend no further. Thus, in some States, me- 
chanics' liens are enforced by ordinary equitable proceedings, 
resulting in a decree for the sale of the property. The equitable 
jurisdiction is in such cases created by statute, and the remedy 
cannot be enlarged by the exercise of the general equity jurisdic- 
tion of the court. 1 

1 Canal Co. v. Gordon, 6 Wall. S61 . See JJ 1866-1661. 
76 



3igitiz eC by GOOgle 



CHAPTER IV. 

AN ATTOBNXY'a GENERAL OB EKTAININQ LIEN. 

I. Introductory, 113, 114. 

II. Upon pipers anil property, 115-138. 
III. Upon moneys collected, 137-152. 

I. Introductorj/. 

113. Ad attorney's general lien is a common law lien 
founded upon possession, and ia a right on the part of an attor- 
ney to retain papers or other property that may have come into 
bis possession, or moneys that he, in the course of his professional 
employment, has collected, until all his costs and charges against 
his client are paid. Like other common law liena springing from 
possesion, it is a passive lien, a mere right of retainer, without 
soy power of enforcement by sale. For this reason it is fre- 
quently called the attorney's retaining lien, 

An attorney's lie*n upon papers was enforced as early as 1784. 
Is » case where an attorney had been employed by one who be- 
came bankrupt, the assignee petitioned that this attorney should 
be required to deliver up the papers, and come in and prove his 
demand pari passu with the other creditors. Lord Chancellor 
Talbot said : 1 " The attorney hath a lien upon the papers in the 
same manner against assignees as against the bankrupt, and 
though it does not arise by any express contract or agreement, 
yet it is as effectual, being an implied contract by law ; but as 
to papers received after the bankruptcy, they cannot be retained, 
and therefore, if the assignees desire it, let the bill be taxed, and, 
upon payment, papers delivered np." 

The practice of protecting an attorney by a lien upon the 
papers and moneys of the client in his hands was an established 
one in 1TT9. In that year, in a suit before Lord Mansfield, in 
which it was sought to establish a lien in favor of the captain 
■gainst the ship for his wages, the counsel instanced the case of 
1 Ex fiaru Bub, 7 Vlner't Abr. 74. 

77 



3igitiz eC by GOOgle 



§ 114.] attorney's general lien. 

attorneys who cannot be compelled to deliver op their clients' 
papers until their fees are paid ; whereupon Lord Mansfield, in- 
terrupting the argument, observed that " the practice, in that 
respect, whs not very ancient, but that it was established on gen- 
eral principles of justice, and that courts, both of law and equity, 
have now carried it so far that an attorney or solicitor may ob- 
tain an order to stop his client from receiving money recovered 
in a Buit in which he has been employed for him, till the bill is 
paid." ' Again, in the same year, in a case directly involving the 
question, the Game judge said : " An attorney has a lien on the 
money recovered by his client for his bill of costa ; if the money 
come to hie bands, he may retain it to the amount of his bill. He 
may stop it in transitu if he can lay hold of it. If he apply to 
the court, they will prevent its being paid over until his demand 
is satisfied. I am inclined to go still further, and to hold that, if 
the attorney gave notice to the defendant not to pay till his bill 
should be discharged, a payment by the defendant after such 
notice would be his own wrong, and like paying a debt which 
has been assigned after notice.*' 3 

This lieu has its origin in the inherent power of courts over the 
relations between attorneys and their clients appearing before 
them. The same power which authorizes courts summarily to 
enforce the performance by attorneys of their duties towards their 
clients intervenes to protect the rights of attorneys as against 
their clients. 8 

114. Io tats country this general lien, In several States, is 
declared by statute. Thus, in Colorado, 1 a lien is given to at- 
torneys upon any money or property in their hands belonging to 
their clients for any fee or balance of fee due them. In Iowa, 6 and 
in North and South Dakota, 8 an attorney lias a lien for a general 
balance of compensation upon any papers belonging to his client 
which have come into his hands in the course of his professional 
employment, and upon money in bis hands belonging to his cli- 
ent, lu Georgia, attorneys have a lien on all papers and moneys 
of their clients in their possession, for services rendered to them, 

i Wilkioa o. Carmichael, 1 Dongl. 101, • 1 B. 8. 1888, S 393. The lien may 

10* (1778). be raleu-ed by bond. 

* Welsh v. Hole, 1 Dong]. 338. * R. Code 1B7T, pp. 33, 33, 55 9, 10. 

* Butchin' Union v. SlanghterhouM In Dakota the lien fa limited to paperi 
Co. II La. Ann. 355, 6 So. Sep. 503. and moneys receireil in the case foe which 

* G. L. 1877,533; G. 8. 1883, | Si. the lien ia claimed. 



3igitiz eC by GOOgk 



TJPOB FAFBBS AND PROPERTY. [§ 115. 

and may retain such papers until said claims are satisfied, and 
may apply such money to the satisfaction of their claims. 1 la 
Kansas, 2 an attorney has a lien for a general balance of compen- 
sation upon any papers of his client which have come into his 
possession in the course of his professional employment, and upon 
money in his hands belonging to his client. In Kentucky, 8 attor- 
neys at law have a lien upon any choses in action, account, or other 
claim or demand put into their hands for suit or collection, for 
the amount of any fee which may have been agreed upon by the 
parties, or, in the absence of such agreement, for a fair and rea- 
sonable fee for their services. In Minnesota 4 and Oregon, 5 an 
attorney has a lien for his compensation, whether specially agreed 
upon or implied, npon the papers of his client which have come 
into his possession in the course of his professional employment, 
and also upon money in his bank belonging to his client. In 
Montana, 6 attorneys have a lien upon moneys in their hands for 
any fees or balance of fees due or to become due for any profes- 
sional services rendered by them in any court of the State. In 
Nebraska 7 and Wyoming, 8 an attorney has a lien for a general 
balance of compensation upon the papers of his client which have 
come into his possession in the course of his employment, and 
upon money in his hands belonging to his client. 

II. Upon Papers and Property. 

116. An attorney has a lien upon his client's papers for 

a general balance due him for services, not only in the suit 

or matter to which such papers relate, but for other professional 

matters. 9 Thus he has a lien upon a bond or mortgage delivered 

1 Coda 1882, J 1989. gun, 39 Ga. 310, 99 Am. Dot 453. Wis- 

1 Comp. Lava, p. 1 M, %% 468, 463. oanain : Howard a. Osceola, 92 Wis. 493 ; 

' G. S. p. 149,5 IS. Cbappell v. Cady, 10 Wia. HI; /n re 

1 G. 3. 1891, 5 4371. Wilton, IS Fed. Rep. 235, par Brown, J. 

1 Annot. Laws 1892, § 1044. Vvw Hampshire : Dennett it. Cutis, UN. 

* H.S. 1879, p. 414, ch.3, J34. H. 163; Wright o. Cobleigh, 21 N. II. 

< Comp Stat. 1881, p 66, ch. 7, § 8. 339, 340. Hev York ! In re Knapp, 85 

' U.S. 1997, § 133; Ac* of Dec 9,1 869, N. T. 284; Ward v. Craig, 87 N. Y. 550, 

f B. 560 ; Prenti<S r. Livingston, 60 How. Pr. 

' Hullia r. Clariilge, 4 Taunt. 807,809; 380; St. John P. Diefendort, 19 Wend. 261. 

Hughe* c. May ru, 3 T. R. 275 ; Howell p. Bebraaka : Elliott v. Atkins, 26 Neb. 403, 

Harding-, 8 East, 362; SieTensonr. Blake- 42 N. W. Rep. 403 ; Van Etten v. State, 

lock, 1 M. * S. 535 ; McPhemon r. Co*, 24 Neb. 734, 40 N. W, Rep. 289 ; Comp. 

96 U. 8. 404; Lesxjn.ky d. Merritt, 9 Stat. 1887, ch. 708. Illinois: Sanders 

Fed.Rap.CS8. dwrgia: Jones B . Mor- o. Seolye,128 11L 631.21 N. E. Rep. 601. 

79 



3igitiz eC by GOOgle 



§ 116.] ATTORNEY'S (1ENRRAI, LIEN. 

to him for the purpose of obtaining a foreclosure of the mortgage, 
Dot only for his costs and charges in that proceeding, but for any 
sum due him from the client for other professional business; 1 
and he has a lien upon a bond, a promissory not*, or other negotia- 
ble paper, or upon a town warrant, or other municipal obligation 
in his hands for collection. 3 

116. Bat although the documents In an attorney's hands 
be bonds or notes, payable to bearer, hie lien does not 
amount to a pledge ; for the only right he has over them is a 
right to retain them till hie reasonable charges against bis client 
are paid. He has no right of sale as a pledgee has. His lien 
upon such documents is valuable in proportion to their value to 
the client. The more embarrassing the attorney's possession is 
to the client, the greater the leverage the possession gives the at- 
torney. In the case of the ordinary papers in a suit, the attor- 
ney's lien is not of great value, except in case the papers are of 
intrinsic value. A workman's lien upon a chattel upon which lie 
has labored is a valuable and direct security, because the owner 
wants the chattel, and must pay the amount of the lien before he 
can get it from the workman. But in the case of an attorney, 

Louisiana ; Butchers' Union v. Slaughter- o. At my, 103 Han. 33, 39, per. Cult, J. 

Home Co 41 La. Ann. 33S, 6 So. Hep. In Newell v. Weir, 149 Mas*. 5*0, 31 N. 

SOB. Vermont : Hurlbert v. BH^ham, 56 B. Hep. 994, it «u held that an agrer- 

Vi. 368 ; Hooper v. Welch, 43 Vt. 169, 9 men t by • client that he will pay hie attor- 

Am. Hep. 267 ; Hutchinson e. Howard, ney for his services in collecting certain 

15 Vt. 944 ; Walker v. Sargeant, 14 Vt. cl-tima a Hied euro of money, to be paid 

347 j Faliick v. Haien, 10 Vt. 183. Oslo: out of the proceeds of inch claims when 

Longwurth e. Haudy, 2 Die. 79. Texaa : collected, doea not operate to transfer to 

Able v. I<cf , G Tex. 427, 431 ; Casey it. the attorney any interest in the claimi. 

March, 30 Tex. 180. Arkansas : Gist b. In thin case it waa said, however, that an 

Haul)', 33 Ark. 233. Mississippi : Slew- attorney receiving moneys far his client 

art e. Flower*, 44 Miss. 513, 7 Am. Hop. might set oH his claim (or service* against 

707. In Arkansas the statute in relation the client's claim for the money collected ; 

to the attorney '■ lien upon judgments in but in this case the attorney, haiin.; col- 

meiely declarative of the law as it stood lected the money in his capacity as admin* 

at the time of Its enactment. It dues not iatrator of hie client, could nut assert any 

have the effect to take away the lien uuun attorney's lien. 

paper) and a. curitics which the law pre- ■ Bowling Green Stir. Bank c. Todd, 52 

Tiouily gave. In Pennsylvania an attor- N. Y. 489; Newton p. Porter, 5 Lao*, 

ney has no lien fur professional com pen- 416; Osborne v. Dunham (N. J.}, 16 Atl. 

nation on papers in his hands. Walton Rep. 231. 

v. Dicker-on, 7 Pa. St. 37G ; Dubois's Ap- * Howard v. Osceola, 22 Wis. 493, 497 ; 

peal, 38 l'a. St. 231, 8 Am. Dec. 478. Sanders b. Seelve, 12S 111. 631, 21 N. E. 

It Deems to be uncertain whether inch a Hep. 601. 
lien exists in Kstsaehusitti. Simmons 



3igitiz eC by GOOgle 



UPON FAFEBS AND PBOPEBTT. [§§ 117, 118. 

his lien is very frequently upon papers which have no intrinsic 
value, and are not even indispensable to the prosecution of the 
suit to which they relate. 

117. Suoh a paper, however, as a life-insuranoe policy be- 
longing to a client, would seem to be a valuable security in his 
attorney's hands. Thus, a solicitor acted for his client in obtain- 
ing a re-assignment to his client of a life policy which the client 
bad mortgaged, and the policy and re-assignment came into the 
attorney's hands and remained there, his charges not being paid. 
The client afterward wished to borrow money upon the policy, 
but, as he stated, forgot where the policy was. Upon application 
to the insurance office a certified copy of the policy was issued, 
and the client executed an assignment to the person who loaned 
him the money. Due notice of the assignment was given to the 
insurance company, which had no notice of the attorney's lien. 
The lender afterwards, apparently wanting to enforce his secur- 
ity, discovered that the policy was in the hands of the attorney, 
and that he claimed a lien upon it. The lender brought Buit in 
equity to have the policy delivered up to him, claiming that the 
assignment to him constituted a first charge on the policy and 
had priority over the claim of the solicitor. But the court dis- 
missed the suit. Mr. Justice Fry observed in the first place, that 
the assignee primd facie took the policy subject to all the equi- 
ties under the general rule applicable to every assignee of a 
chose in action. He disposed of the objection that the solicitor 
should have given notice to the insurance office of his lien by 
pointing out that the solicitor had no right to the fund repre- 
sented by the policy, and no right to constitute the insurance 
office a trustee in his behalf ; that the solicitor had merely a pas- 
sive right to hold the policy, the piece of paper constituting the 
instrument, until bis claim should be paid ; and that this was 
in fact merely a right to embarrass the person who might claim 
the fund, by the non-production of this piece of paper. 1 Finally 
the learned jndge commented upon the laches of the lender in 
not requiring the production of the policy at the time of the as- 
signment, saying that he run the risk of its being in the bands 
of some person who might have a lien upon it 

118. This lien extends to an execution or a oopy of a judg- 
ment in the attorney's hands, but it does not reach to the 

■ We*t of England Bank p. BMchelor, SI L. J. (N. S.) Ch. 199. 

VOL. L S 81 



;y Google 



§ 119.] attorney's general likk. 

Judgment itself. 1 This lien rests upon possession, and there can 
be no possession of a judgment. 3 " It ia but a decision of a court 
upon a claim made by one party against another. It exists but 
in intendment of law. The records of the courts are the evi- 
dences of such judgments; bat these are public, preserved in 
the custody of public officers, over which neither the attorney 
nor his client has any control, and for which neither has any 
rightful possession. The execution is no such representative of 
the judgment as to give to the holder any control over the judg- 
ment. Neither does the possession of the execution, or of a copy 
of the judgment, by the attorney or any third person, disable a 
creditor from exercising any of his rights as Buch. The indispen- 
sable requisite to any ordinary lien, possession, is wanting." 8 

119. This lien attaches only when the client's papers come 
into the attorney's hands, * and come to him, moreover, in the 
course of his professional business. 6 The lien must arise from 
professional employment." Thus he has no lien on papers which 
he has received as mortgagee T or trustee ; 8 but, if he receives 
the papers in his professional capacity, it does not matter that he 
sustains some other business relation to his client. 9 

1 Wright d. Cobleiph, ai N. H. 339. be reported to be dne, the record was re- 

A clerk of court who has possession of the lamed into court, upon which the rale 

papers could cot probably have any lien was discharged." Lord Mansfield said he 

upon them, because the papers are public should be very unwilling to determine 

and part of a public record. In a note to that a clerk of asiiie ha* a lien on the 

King v. May, 1 Doug. 193 (1T79), Lord records of the court for bis fees for that 

Mansfield desired the bar would take a he foresaw great inconvenience from such 

note of this, that it might be publicly a doctrine. 

known. " A case occurred in ibis term, * Hough v. Edwards, 1 II. & N. 171, 
■when I happened not to be in court, but I per Martin, B. ; Patrick v. Leach, 2 Mc- 
oave seen a very accurate note of it. It Crary, 635, la Fed. Rep. Ml. 
■enmeon upon a rule to show cause why an « Wright o. Cohlcigh, 21 N. H. 339, 
attachment should not issue against the per Bell- 
defendant, who was clerk of assise on * St. John a. Diefendorf, 12 Wend, 
the Norfolk circuit, for not obeying a writ 261. 

of certiorari to lemove an indictment for * Stevenson v. Blakelock, I Manle A S. 

murder, and a special verdict founded 535; Sanders o. Seelye, 138 111. 631, 21 

upon it. The defendant insisted that he N. E. Rep. 601. 

had a right to retain ibe .record till he ■ Worrall o. Johnson, S Jac ft W. 

should be paid his fees for drawing, en- 219. 

grojainjr, etc., which the attorney for ? Pclly p. Wathen, 7 Hate, 351, 364, 

the prisoner refused to do, on the ground IB L. J. Ch. 281. 

of their ibeing exorbitant. However, on * Ex parte Norland, L. K, * Ch. D. 

the attorney's undertaking to pay as much SIS. 

as should, on a reference to tbe master, * King o. Hankey, 6 N. &M. 839. 



3igitiz eC by GOOgle 



BPOH PAPKRS AKD PEOFKBTT. [§§ 120-122. 

Where an attorney baa prosecuted a suit and recovered land 
for his client, and the latter has afterwards sold it and taken a 
deed of trust and bond for the purchase-money, and has made the 
attorney a trustee in the deed of trust and delivered the papers 
to him, the attorney has a lien upon the papers for bis services 
in the suit ; and if the client brings a bill in equity for the 
removal of such trustee and the delivery of the papers, it is the 
duty of the court to decide upon the existence and amount of the 
lien claimed by the attorney, and to decree such delivery on pay- 
ment of the amount of the lien found to exist ; and it is proper 
for the court to decree such delivery on the performance of this 
condition, though the attorney, by neglecting to file a cross bill, 
can have no decree for affirmative relief. 1 

120. The lien attaches not only to' papers, but to other ar- 
ticles which come into the attorney's hands professionally, such 
as articles delivered to him to be exhibited to witnesses. 3 

121. An attorney has no lien on his client's will, 8 nor on 
original records of court. 1 

122. There is a presumption in every case that an attorney 
has a lien on the papers in his hands, for compensation for his 
services rendered. If he has given up his employment and with- 
drawn from the case, he will be entitled to such lien, unless it is 
shown that he has agreed to make no claim to compensation, 
or to claim no lien for his services. 5 The client has a right to 
change his attorney if he likes, but if he does so the law imposes 

' MaPhenon B . Cox, 98 U. 8. 404. the solicitor's lien, and ■abject to re-de- 

1 Friswell p. King, 15 Sim. 191. In livery alter the hearing. Colegrave r. 

tbia caae tbs lien was enforced upon cer- Manley, T. 4 R. 400 ; Wilson v. Em men, 

tain copies of- a. rcry expensive book used 19 Bear. 233 ; Cans e. Martin, S Bear, 

in eridnncs. S84. But in Caae the client discharges 

4 Redfearn v. Sowerby, 1 Swanrt. St; the solicitor, the latter ia under no ob- 

Balcb v. Symea, 1 T. as B, 87. ligation to produce the papers, or to 

* Clifford v. Tamil, 2 De G. * Sro. 1. allow the client lo inspect them. " The 

* Lesiymkj f. Merritt, 9 Fed. Rep. discharged solicitor," said Lord Eldon, 
SSS; Finance Co. v. Charleston C. 4. C. "ought to be able to make use of thenon- 
R. R. Co. 48 Fed. Rep. 45. By the Eng- production of the papers in order to get 
liah authorities a distinction ia made be- at what is due him." 

tween the caae of a solicitor withdrawing Id atasauhusettt it la held that, if an 
from a ease and the case of the discharge attorney volnnlarily withdraws from a 
of the solicitor by the client. In the suit, he ia not entitled to withhold a pa- 
former caae it ia (aid that the client ia en- per in his possession and prevent it from 
titled lo an order for the delivery of the being used in evidence until his fees are 
Deceasarj papers in the cause for the for- paid. White t>. Harlow, 5 Gray, 463. 
tber protecatiou of the action, subject to 



y, Google 



§§ 122 a, 123.] attobnky's general lieh. 

certain terms in favor of the attorney ; namely, that the papers 
in the suit cannot be taken out of his hands nntil his reasonable 
charges are paid. The things upon which he claims a lien are 
things upon which he has expended his own labor or money ; and 
he should have a lien in the same way as any other workman who 
is entitled to retain the things upon which he has worked until 
he is paid for his work. 1 

122 a. Whether, during such retention, the client or the 
succeeding attorney has the right to inspect the papers is a 
question upon which the authorities are not in harmony, though the 
weight of authority seems to be in favor of such right. 3 But none 
oi the decisions permit an inspection of the papers, except when 
a particular suit is in progress and the papers pertain to that suit. 
Upon an application for an order of court requiring the attorney 
holding the papers to submit them to the inspection of his client 
or the succeeding attorney, it most be shown that a particular 
suit to which the papers pertain is in progress. A general alle- 
gation that the attorney is prosecuting actions against his former 
client, and that in such actions he would have great advantage 
in holding possession of the papers which he had received as attor- 
ney of such client, and that an inspection of such papers is neces- 
sary for the proper conduct of such cases, is insufficient, as against 
the denial of the attorney that there is any suit pending in which 
he bad acquired knowledge as attorney, or to which the papers 
retained by him relate, and which suit he is now prosecuting 
against the client. If it were shown to the court that such a mis- 
use of papers was threatened, contemplated, or made, the papers 
would be at once impounded and lodged with the clerk.? 

123. This lien covers the attorney's general balance of 
account as against bis client, and is not limited to the services 
rendered in the particular matter in which the papers were re- 
ceived. 4 Upon a petition by an assignee in bankruptcy to have 

1 Ex parte Yalden, 4 Ch. D. 129, per 400; Heolop ». Metcalfe, 3 Myitis ft C. 

James, L. J. ; Mitchell v. Old Held, 4 T. 1S3, 186 ; Cane v. Martin, 3 Bear. B84 ; 

K. 123; Ex parte Nesbitt, S Sebo. ft Lef. Wilson v. Emmett, 19 Bear. 233; Fi- 

179, 1 Mania ft S. 635. nance Co. o. Charleston C. & C. K. K. Co. 

* Boat v. Laughton, 1 Vet, ft B. S49 ; 4S Fed. Rep. 4S, 46 Fed. Rep. 4!G. 

Commerell u. Pojnton, 1 Swiinst. 1. Both * Finance Co. V. Charleston C ft C. 

cases are much shaken by Lord a. Worm- R. R. Co. 48 Fed. Rep. 45. 

leigbtou, Jac. 580 ; Newton e. Harland, 4 * Finance Co. v. Charleston C. ft C. B. 

Scott, N. R. 7S9. Bnt see, in support of R. Co. 46 Fed. R. 426. 
them, Colegrare o. Manley, 1 Turn, ft R. 

84 



jipismb, Google 



UPON PAPERS AND PROPERTY. [§§ 124, 125. 

deeds and papers belonging to the bankrupt delivered up by an 
attorney who claimed a lien upon them for bis general bill, it 
was objected that the bill should be limited to the services ren- 
dered in the particular matter in which the papers were received. 
But Eldon, Lord Chancellor, said : 1 " The general lien must 
prevail. Different papers are put into the hands of an attorney, 
as different occasions for furnishing them arise. In the ordinary 
case of lien I never beard of a question, upon what occasion a 
particular paper was put into his hands ; but if in the general 
course of dealing the client from time to time hands papers to 
bis attorney, and does not get them again when the occasion 
that required them is at an end, the conclusion is that they are 
left with the attorney upon the general account. If the inten- 
tion is to deposit them for a particular purpose, and not to be 
subject to the general lien, that must be by special agreement; 
otherwise tbey are subject to the general lien which the attorney 
has upon all papers in his hands." 

124. Bat the attorney's lien is limited to debts due to him 
in the character of attorney. It does not extend to general 
debts. 9 Accordingly, the lien of the solicitor of a railway com- 
pany for his costs does not include costs incurred in relation to 
the promotion of the company before incorporation, such costs, 
by the usual clause in the act, having been made a statutory 
debt to be paid by the company. 8 

126. No one who is not an attorney, solicitor, or barrister, 
oan maintain this lien upon papers. A real estate broker has 
no lien on papers and plans placed in his hands for the purpose 
of effecting a sale of the property, though he has rendered ser- 
vices and incurred expenses in an ineffectual attempt to make a 
sale.* It was claimed that the position of a real estate broker 
in regard to papers placed in his hands is the same as that- of an 
attorney or solicitor or other bailee who expends time or money 
upon the property of a bailor. But it may be said, in answer to 
this claim, that the lien of an attorney or solicitor is peculiar to 
bis profession. It is, moreover, a general lien for his balance of 
account, and not a particular lien for his labor or expense upon 
that particular article, such as is given by the common law to any 

1 Ex parte Sterling, IS Ves. 158. ' In re Galland, L. E. 31 Ch. D. 196. 

* Worrall ». Johnioa, S Jae. & W. 314, * Arthur v. Sjlvuter, 105 Pa. St. 
118, per Pinner, H. B. 283. 



- ;: . a, y Coog!e 



§ 126.] attorney's general lien. 

bailee who expends time and money upon the property of another 
at his request. The real estate broker does not perform any labor 
upon the papers themselves, such as would give a particular lien 
at common law. Every one, whether an attorney or not, has by 
the common law a lien on a specific deed or paper delivered to 
him to do any work or business thereon, but not on other muni- 
ments of the same party, unleae the person claiming the lien be an 
attorney or solicitor. 1 

A conveyancer who has not been admitted as an attorney or 
solicitor cannot have the benefit of the law and custom which 
gives the latter a general lien; hat sach conveyancer, like any 
other person, may have a lien for services done upon any partic- 
ular paper. 

The case of a real estate broker is like that of an auctioneer 
to whom a mortgage was delivered for the purpose of obtaining 
the money due thereon, and be made several applications to the 
mortgagor, hut received no money. The Court of Exchequer 
held that he had no lien on the deed in respect of the charges 
for making the applications. Baron Holland said : a " The dis- 
tinction is that, where any work is to be done on a chattel to 
improve it or to increase its value, the lien attaches; but where 
it is merely delivered, as in this case, to make a demand upon it, 
no such right can be supported. My opinion does not rest upon 
principle alone, but is illustrated by the cases cited of the trainer 
and the livery-stable keeper. A livery-stable keeper is easily 
contradistinguished from a trainer or a breaker. The breaker or 
trainer, by the exercise of his labor and skill, gives to the horse 
delivered to him to be broken or trained, qualities and powers 
which are not given by the livery-stable keeper.*' 

The auctioneer and the real estate broker do not come within 
the rule of the common law giving a Hen, unless they show work 
done npon the papers upon which they claim a lien ; and they 
certainly do not come within the rule giving a lien to attorneys 
upon papers in their hands. 

126. Under some circumstances the attorney's lien npon 

papers is special, instead of being general, as is ordinarily the 

case. The attorney has a lien only npon such papers as are 

1 Hollii v. Claridge, 4 Taunt. SOT. * Sanderson v. Bell, a Crompt. & H. 



3igitiz eC by GOOgle 



UPON FAFKHS AND FEOPEBTY. [§ 127. 

delivered to him for use in his professional employment. 1 If be 
has received the papers for a specific purpose, not connected with 
his professional employment, he 'can have no lien on them for 
his general balance of account. If it be agreed or understood 
that the papers are delivered for a specific professional purpose, 
a specific instead of a general lien may arise for the specific 
service rendered. 3 

127. An attorney's general lien upon papers may be fol- 
lowed by a particular lien npon the Judgment recovered by 
the nse of them. The former lien is not, however, transferred 
or transmuted into the latter. The former passive lien remains, 
though it may be of no value after judgment, and a new active 
lien arises upon the judgment. Thus, if a solicitor, having in 
his possession a deed belonging to his client, who has ceased to 
employ him, produces the deed in a suit which is prosecuted by 
another solicitor, the former solicitor is not entitled to a lien 
upon the fund recovered in the suit for his general professional 
charges against the client, but at most only for his costs in that 
suit. So long as he held the deed, he had by means of it a lien 
for his general professional demands. The lien upon the deed 
he could never actively enforce ; but, having possession of it, he 
might make advantageous terms with the client who wants to 
produce it in evidence. But if he voluntarily produces the deed, 
and a fund is secured by the use of it, the solicitor is not entitled 
to a lien upon the fund so obtained for his general professional 
demands, but ouly for his costs in the cause. If the doctrine were 
otherwise, the attorney's lien would in most cases extend to the 
general balance of his account against his client, and would not 
be confined to his costs in the particular cause in which he ob- 
tains judgment; for it generally happens that the solicitor has in 
his hands the documents necessary to establish his client's title.* 
The lien npon the fund is newly created and is a new lien. It 
is a lien for the solicitor's costs in the cause only, but a lien 
which can be actively enforced. The passive lien upon the 

1 Balcb o. Symes, 1 T. Jt K. 67, 98; Lord Chancellor Cottcnliam wtid lie found 
Lawinn p. Dickinson, 8 Mod. 306. no decision to the contrary except Woi- 

* Ex parte Sterling, 16 Vat. 258. See, rail p. Johnson, 1 J. & W. 314, which ha 
alio, Ex parte Pemberton, IB Yea. BBS. could not reconcile with, any aound prin- 

1 Boion b. Holland, 4 My I. * C. 354. dpla. 

87 



3igitiz eC by GOOgle 



§ 128.] attorney's general lien. 

papers used in a causa may, perhaps, continue as before, but very 
likely may be of no value. 1 

128. An attorney's lien upon papers is discharged by hie 
taking security for his whole demand, or by his agreeing to 
postpone payment for a definite time. A client, after having 
settled bis solicitor's bill for services by giving notes payable in 
three years, applied to him before the notes were due for the 
papers in his hands, wishing to employ another solicitor. The 
solicitor declined to give up the papers unless the client would 
also pay for services the solicitor had rendered him in his ca- 
pacity as executor, though the client had no assets with which to 
discharge the debt. It was decreed that the solicitor should give 
up the papers upon the client's paying for the services rendered 
after the time of the settlement and the taking of the notes. 
Lord Eldon said a lien on the papers in favor of tbe solicitor was 
inconsistent with the giving of credit for three years by means of 
the notes. 1 Looking at the general doctrine of lien, Lord Eldon 
said : " It may be described aa primd facie a right accompa- 
nying tbe implied contract." That there could be a lien when 
there is a special agreement to give credit upon security would 
involve a contradiction of the agreement. " My opinion there- 
fore is, that, where those special agreements are taken, tbe lien 
does not remain ; and whether tbe securities are due or not makes 
no difference." 8 

But the attorney's lien upon papers is not extinguished by his 
taking a note or acceptance from his client for the amount due 
him, unless it appear that the note or acceptance was given or 
received in payment of such balance. 4 

This lien is lost by the attorney's voluntary surrender of the 
papers to his client ; for possession is indispensable to this lien.* 
The Hen is lost when tbe attorney has parted with the possession 
of the papers by his own act, even though this was a mistake on 
his part. 6 But it is not lost by a transfer of possession to an 
agent, for the possession of the agent is the possession of tbe prin- 

i Bowling Green Sav. Bank o. Todd, Bslch v. Symes, T. & R. 87, 92 ; Watson 

S3 N. T. 469, affirming Bi Barb. 146, v. Lyon, 7 Da 0* M. & Q. 138. 

seems at first view to sustain a contrary * Stevenson t>. Blakelock, 1 Maole A S. 

doctrine. This case 1b criticised in In re 535; Dennett o. Cattl, II N. H- 163. 

Wilson, 13 Fed. Rep. 235, by Brown, J. * Nichols v. Pool, 89 III. 491 ; DnboU'i 

* Cowell v. Simpson, 16 Vet. 375. Appeal, 38 Pa. St. 331, 80 Am. Dec 478. 

* Cowell v. Simpson, 16 Ve*. S75; alto « Dicaa ». Stockley, 7 C. * P. 687. 



3igitiz eC by GOOgle 



UPON PAPERS AND PROPERTY. [§§ 129-132, 

cipal ; and it is not lost by a transfer to another, subject to the 
lien. 1 If the papers are obtained from him wrongfully, bis lien 
remains, and he may maintain trover for them. 3 

129. Am attorney's agent or correspondent has no Hen upon 
the papers of the client for the balance of his own account Against 
the attorney, but he has a lien upon the papers in his bands in 
the particular case, for the amount due him by the attorney in 
that particular case only. To this extent the agent's lien is good 
•gainst the client.* 

130. One member of a Arm of attorneys haa no lien for an 
individual demand upon papers of a client in the hands of 
the Arm. The firm alone has a right to hold and retain the 
papers, in snch case, and the firm alone has a right of lien 
thereon. 4 And bo a solicitor having a lien for his account upon 
papers which have come into his hands professionally from a 
client acting in his individual capacity, cannot retain them for a 
debt due him from a firm of which the client ia a member . B An 
attorney cannot have a lien upon papers to a greater extent than 
hit client's interest in them. 

131. An attorney's lien upon papers is not affected by his 
client's assignment in bankruptcy or insolvency, or for the 
benefit of creditors. The assignee in either case takes subject 
to the attorney's equitable right at the date of the assignment. 8 
The Hen is good against all persons claiming under the client.' 
He must therefore satisfy an attorney's lien existing at that time 
either upon papers or moneys collected, before he can claim the 
papers or moneys then in the attorney's hands. 8 

The lien is not lost because the debt in respect of which the 
lien is claimed is barred by the statute of limitations. 9 

132. This lien of the attorney upon his client's papers can- 
not be actively enforced. It in a passive lien. It amounts to 
a mere right to retain the papers, as against the client, until he 

1 Walton v. Ljoa, 7 Do G., M. S. G. * Tnrner v. Deane, IS L. J. Ex. 343. 

JW,i98. « Ex part* Bush, 7 Vin. Abr. 7*; Ex 

* Dints. Stockier, 7 C. ft P. 587, porta Sterling, 16 Ye*. 358; Ward v. 

* Dieaa v. Stockier, 7 C. & P. 9S7. Craig, 87 N. Y. 550, SGO. 

1 Pellj p. Wathen, T Hare, 351, S6S, 14 ' 1* n Gregaon, 96 Bear. 87. 
Jar. t; An Fonhtir, 18 Sim. 131 ; * 18 Alb. L. J. 114. 
Vinghui d. Vudentagen, 9 Dr. 408 ; * In re Murray. 3 W. N. (1867) ISO. 
Bowling Green Savings Bank ft Todd, 31 
B.T.48S. 



3igitiz eC by GOOgle 



§§ 188, 134.] attobkey's general lien. 

is fully paid. 1 The papers cannot be sold, neither can the pos- 
session of them be parted with, without loss of the lien. No ac- 
tive proceedings of any kind can be taken either at law or in 
equity to enforce the lien for which the papers are held. 

The Hen, however, continues till the debt for which the lien 
exists is paid. 1 

An attorney's lien upon a promissory note in his hands for col- 
lection gives him no right to a judgment against the defendant 
for the amount of his fees after the defendant has paid the note 
to the attorney's client.' 

133. Indirectly an attorney's lien upon papers in a suit 
for his fees may, under some circumstances, be enforced by 
order and execution. Thus, where the plaintiff in a suit peti- 
tioned the court for an order substituting other attorneys in place 
of the attorney who had been conducting it, and directing him 
to turn over the papers in his hands pertaining to the action, 
and there being a dispute in regard to the amount of the com- 
pensation due the attorney, the court ordered the plaintiff to file 
a bond conditioned to pay the sum that should be found due him, 
and referred the question of the compensation to a referee. Upon 
the coming in of the referee's report the court confirmed it, and 
ordered that the attorney should have execution for the amount. 
Upon appeal it was held that the court had power to compel 
compliance with its own order in this manner, though" it might 
also have proceeded to enforce the order by proceedings in the 
nature of contempt. 4 

Where the client offers to give security for the amount that 
may be found due to his attorney, the latter should be ordered 
to deliver op the papers on security being given, especially if 
there be any doubt in regard to the validity of bis claim. 6 

134. It is sometimes proper for the court to determine the 
existence and amount of the lieu, and to establish the condition 
upon which the attorney shall deliver up the property. Upon a 
bill in equity for the removal of a trustee in a deed of trust, and 

1 Unison o. Bolland, 4 My]. & C. SM, a Wartmnon c. Edge, 9 Sim. SOS ; 

BM, per Cottenhua, L.C. ; Hetlopr. Met- Young v. English, 7 Bear. 10. 

Cftlfe, 3 Hjl. & C. 183 ; ColegrsTS v. Man- * Tillman e. Reynolds, 4S Aim. 36ft. 

lay, T. & R. 400; Brown c. Bigley, 3 » Greenfield v. Mayor, 2B Hnn, 330. 

Tens. Ch. 818, per Cooper, C.; JnreWil- * Cunningham v. Wiling, 9 Abb. Pr. 

•on, 19 Fed. Rep. !33, per Brown, J., 96 413. 
Alb. L. J. 9T1. 

90 



3igitiz eC by GOOgk 



UPON PAPERS AKD PKOPBBTT. [§ 135. 

for the surrender of the bond secured by such deed where the 
trustee claimed a lien upon it for professional services, it is the 
duty of the court to decide on the existence and amount of the 
lien, and to decree such delivery on payment of the amount 
of the lien, if one be found to exist. If the attorney has neg- 
lected to file a cross bill, he can have no decree for affirmative 
relief ; bnt it is proper for the court to establish the condition 
on which the delivery of the bond to the complainant shall be 
made, and to require such delivery on the performance of that 
condition. 1 

A litigant is not debarred of his right to change his attorney 
by having agreed to pay a fee contingent upon the amount recov- 
ered. Such agreement is regarded as providing for the mode of 
compensation only. On a motion for a substitution the court will 
grant it upon the client's filing a stipulation, and the entry of an 
order declaring the attorney's claim a lien to the extent of the ser- 
vices rendered, the amount to be afterwards determined, should 
any moneys or judgment be recovered ; and that notice of the lien 
be given to the other party to the suit. 9 

136. Summary application to court (or surrender of papers. 
— Where an attorney's lien is questioned by a client, upon a sum- 
mary application to the court requiring the attorney to surrender 
papers intrusted to his care, the question of the existence and 
amount of the lien may be determined by the court or a referee 
upon a proper investigation. The court cannot, upon such appli- 
cation, disregard the attorney's claim of a lien, and without inves- 
tigation order the surrender of the papers. The court will never 
disregard the right of the attorney or deny him bis lien where it 
has justly attached. 8 But, on the other hand, it has been held 
that if the client claims that, by contract with his attorney, the 
latter upon giving up his employment has no claim for compen- 
sation, and therefore should surrender the papers in his hands, 
the fact in controversy cannot, except by consent, be determined 
by the court in a summary way. It must be left to be deter- 
mined in a suit to be brought by the attorney for his compensa- 
tion ; the lien, if any, remaining in ttatu quo meanwhile. If such 
suit be not brought within a time limited, or be not then dili- 



n v. Cox, 98 U. S. 404. 
1 Ronald v. Hat. Besom Fnnd Life '. 
Ajmw. 30 Fed. Rep. 228. 



3igitiz eC by GOOgle 



§§ 136, 137.] attomit's general men. 

gently prosecuted, the court would order the papers to be given 
up.* 

136. A court has Jurisdiction to order a solicitor to de- 
liver Dp his client's papers, upon the client's paying into 
court, or upon his giving security in a sum sufficient to answer 
the solicitor's demand, before this is adjusted, where his reten- 
tion of the papers on which he claims a lieu would embarrass 
the client in the prosecution or defence of pending actions. 3 
There is a dictum of Lord Bomilly, who as Master of the Rolls 
was very conversant with these matters, in these words: 1 
" Where a solicitor sends in his bill, and claims a stated balance 
to be due to him, the client is entitled, as a matter almost of 
course, to have his papers delivered over to him on payment of 
the amount claimed into court." In another case Lord Romilly 
again states his practice: 1 "The course I adopt in all these 
cases is this : Where a sum is claimed by a solicitor to be dne to 
him, and some delay occurs iu the taxation imputable to the 
fault of no one, I order the papers to be delivered over on the 
amount being secured, and on an undertaking to produce them 
as required in the course of tbe taxation." Mr. Justice Cbitty 
stated the result reached in the recent case before cited as fol- 
lows: 5 "The court, in the exercise of its discretion, says that if 
the solicitor is completely secured, and it takes care not to enter 
upon a matter of controversy as to the amount, bat to give him 
the amount which he claims and a sum to answer the costs of 
the taxation, it is inequitable that he should be allowed to em- 
barrass the client further by holding the papers." 

III. Upon Moneys Collected. 

137. An attorney also has a lien upon moneys oolleoted 
by him on his client's behalf, in the course of his employment, 
whether upon any judgment or award or not. 9 It does not matter 

1 Leujnsky v. Merritt, 9 Fed. Rep. Handy, 2 Di». 75 ; Wehl v. Frieeter, ST 

BBS. Ohio St. 4T3, 477, per Okey, C. J. ; Cook* 

1 In r» Galtaod, L. It. 31 Ch. D. 296. b. Thresher, 51 Conn. 105; Bam* v. Allen, 

* Inn Botbti, 33 Bmt. 439. 1 New Enp. Rep. 143 ; Dowllng v. Ejrge- 

* In re Jewitt, 34 Iteav. 32. iubeu, 47 Mich. 171, 10 N. W. Rep. 187 ; 
1 In n Galland, L. R. 31 Ch. D. 296. Read p. Boetick, 6 Humph. 311 ; Hurthert 

* Welsh e. Hole, 1 Dong. 238 ; In r* v. Brighmm, G6 Vu 388 ; Caasj v. March, 
Paschal, 10 Wall. 483; Inn Knapp, 85 30 Tex. 180; Kinsey v. Stewart, 14 Tax. 
N. T. 284 ; Bowling Green Savings Bank 457 ; Able v. Lee, 6 Tex. 427, 431 ; Stew- 
v. Todd, 52 N. T. 489; LoDgworih v. ait v. Flower*, 44 Mias. 513,532, 1 Am. 

92 



3igitiz eC by GOOgk 



UPON MONEYS COLLECTED. [§§ 188, 139. 

that there is no express agreement as to the rate or measure of 
compensation, or as to the source from which this should be paid, 
A lien upon the moneys collected may be implied from the facts 
and circumstances of the case. Where the client is insolvent 
and enable to contribute to the disbursements in the proceed, 
ings, it cannot be donbted that there is an understanding that 
the attorney is to look to the fund ultimately recovered for reim- 
bursement of the money paid by him, and for compensation for 
his services. * 

i 138. Such lien does not, however, attaoh to money deliv- 
ered to the attorney by his client for a specific) purpose, such 
as the payment of a mortgage, to which the attorney agrees to 
apply it. 1 So, if the money is delivered to him to apply to the 
settlement of a suit, he cannot retain his feeB out of it. Thus, 
where a guardian for minors, being plaintiff in an ejectment suit, 
agreed with the defendant to discontinue the action, and, leave 
of the Probate Court being had, to convey to him the interest of 
his wards in the land, in consideration of the payment of one 
hundred and fifty dollars, and the costs of the petition to the 
Probate Court, and the defendant deposited with his attorney in 
the ejectment suit one hundred dollars, taking from him a paper 
acknowledging the receipt of the money as "towards the settle- 
ment," snch deposit is a special one, for a special purpose, and 
the attorney cannot retain his fees out of it. The plaintiff hav- 
ing petitioned the court in which the ejectment suit was pending 
for an order requiring the attorney to pay over this money, the 
order was made accordingly. 8 Chief Justice Durfee remarked 
that the money was left with the attorney and received by him 
for a special purpose. He could not, therefore, consistently with 
his agreement or duty, apply it to any other purpose without 
leave of his client. The equity of this view was the stronger, 
because the attorney, by giving the receipt, put it in the power 
of bis client to use it, in effecting the settlement, as so much 
money in the attorney's hands. 

139. Such lien does not attaoh for professional services 

Bep. 707 ; Lewis v. Kinealy, 2 Ho. App. ton v. Dickeroon, 7 Pa. St. 376 ; Dnbois'i 

M. Contra, Local v. Campbell, 88 HI. 447, App. 38 Pa. St. 231, 80 Am. Dec 478. 

4S1. >/«n Knapp, 85 N. T. 284. 

It Mem not to exiit in FenniylTanla * In re Lamer, 20 Weekly Dig. 73. 

under the name of lien, hut rather nnder * Anderaon v. Bob worth, 13 B. L 443, 

(be nam* of a right of defalcation. Wal- 8 Atl. Bep. 339. 



;y Google 



§§ 140-148.] attorney's genxbal lien. 

rendered to an executor, in the administration of the estate of 
the decedent, upon property belonging to the deceased which was 
in the attorney's hands at the time of tbe decease and upon 
which he then had no lien. The attorney's claim in such case is 
against tbe executor who employed him, and not against tbe 
deceased or bis estate. 1 

140. The lien of an attorney attaches to money recovered 
or oolleoted by him upon a judgment. 2 Upon the judgment 
before it was collected, be had a lien for his crista ; bnt when 
be has actually collected tbe money upon the judgment, this lien 
is satisfied, and a new lien attaches for any claim he may have 
against bis client for bis services or disbursements, either in the 
cause in which the judgment was obtained or any other. 8 

141. The attorney haa no lien upon a judgment for dam- 
ages until he haa oolleoted the money ; * and until such a col- 
lection his client may receive the money and give an effectual 
discharge of the judgment. The attorney's general lien is ren- 
dered effectual by his possession and only by possession." 

142. The lien of an attorney extends to money oolleoted 
upon an award as well as that collected upon a judgment 
Chief Justice Kenyon, so deciding, placed his decision upon 
"the convenience, good sense, and justice of these things." He 
further says, "The public have an interest that it should be 
so ; for otherwise no attorney will be forward to advise a refer- 
ence." B 

143. This lien prevails against one to whom the client has 
assigned the olaim while suit is pending, if the consideration 
of the assignment be a preexisting debt, and the assignment be 
made in a State where a preexisting debt is not regarded as a val- 
uable consideration, as, for instance, in New York. 7 It also pre- 
vails against the client's assignment for the benefit of hia cred- 
itors. 8 

1 Delamater r. M'Caikie, 4 Dnn. S49. * Wells p. Hatch, 43 S. H. 346. 

See In re Knapp, S5 N. T. 284, reversing • See Chapter V. 

B Abb. N. C. SU8; In t* Lamberaon, 63 * Si. John u. Diefendorf, 11 Wend. 261 ; 

Barb. S97 ; Barnes u. Newcomb, 11 Weekly Casey v. March, SO Tex. 180. 

Dig. SOS ; Piatt v. Piatt, 42 Hod, 6S9 ; * Ormerod v. Tale, 1 East, 464. 

on appeal, IS N. Eut. Hep. 22. ' Schwartz v. Schirartl, SI Hud, 33. 

» Well* b. Hatch, 43 N. H. S46 ; Bowl- ■ Ward b. Craig, 87 N. Y. 550, 9 Daly, 

ing Green Sar. Bank v. Todd, 53 N. Y. 182. 
489. 

94 



3igitiz eC by GOOgk 



UPON MONEYS COLLECTED. [§§'144-146. 

144. Associate counsel employed by the attorney in a suit 
also have a lien for their fees where the attorney has snch a 
lien; or, if the attorney collects the judgment, he may deduct 
not only his own fees, but is protected in the payment of like 
reasonable fees to other attorneys or counsel employed in the 
Bait. 1 Bnt counsel have no lien on a judgment recovered. ThiB 
is confined to the attorney of record. 3 

146. Whether a lien or right of set-off! — It is a matter in 
dispute whether tbe attorney's claim upon moneys collected for 
bis client, for the payment of any indebtedness of the client to 
bim, rests upon the law of lien or the law of set-off. The courts 
generally declare that the right results from the law of lien ; 
but some courts hold that it results from the law of set-off. 8 
Thus, in a Pennsylvania case, it is said to be a right to defalcate, 
rather than a right of lien. 4 

146. Lien for general balance of account. — An attorney's 
lien upon moneys collected extends not only to his services and 
disbursements in the case wherein the moneys are collected, but 
also to pay the general balance due him for professional services 
and disbursements. 6 He may retain money to a reasonable 
amount to cover a stipulated fee in another case, in which he 
has performed only a part of the services, if in good faith he 
intends to perform the remainder. 8 

In some cases, however, it has been held that the lien of an 
attorney upon moneys of his client secures only his services in 
tbe matter in which he collected the money, not his services about 

1 Jncksou v, Clopton, H All. 29, 11 Iro, Pope n. Armstrong, 3 8m. A M. 

Rep. TT3. 114. 

* Brown v. Mayor, 9 Hau, 5S7. * Randolph u. Randolph, 3* Tex. 181. 

* Wtlliu. Hatch, 43 N. H. 246. Id In re PaacbaJ, 10 Wall. 483, which was 

* Dubois's App. 38 Fa. St. 231, SO Am. a case from tha State of Taaaa, ami wan 
Dec. 478 ; Balsbangh p. Frazer, 19 Pa- regarded ai governed by the laws of that 
St- 95 ; McKelvy's App. 108 Pa. St. 61S. State on thin subject, the lien of an altor- 

* Huilben p. Bright ro, 56 Vt. 368 ; In ney was conferred for bis feel and die ■ 
r* Attorney, 87 N. Y. 521, 63 How. Pr. buraementa in the cauae in litigation and 
151; In re Knapp, 85 N. T. 284; Ward v. in proceeding* brought to recover other 
Craig, 87 N. Y. 550 ; Cooke D. Thresher, moneys covered by the same retainer. Bnt 
SI Conn. 105. In tbe latter cane the client the court did not undertake to decide 
had orally agreed that the attorney should whether en attorney's lien extends to the 
hare a lien, not only for his services in whole balance of his account for profet- 
thai case, bat for previons service*. Cm- sional services. 

95 



jipismb, Google 



§ 147.] attokney's qehebal lies. 

other business of his client, 1 unless, perhaps, in ease audi other 
business is covered by the same retainer. 3 

The lien which an attorney has upon bis client's papers is 
commensurate with the client's right and title to them. If the 
client has taken to his attorney, for bis opinion, papers which 
the client has received from another person for inspection pend- 
ing negotiations for a sale of property or other business transac- 
tion, ttie attorney cannot, upon a claim of lien, retain the papers 
as against the person to whom they belong. Judge Gibbs, of 
the Court of Common Pleas, states a similar case: 8 "suppose 
one having a diamond offers it to another for sale for £10 J, and 
gives it to him to examine, and he takes it to a jeweller, who 
weighs and values it ; be refuses to purchase, and, being asked 
for it again, he says the jeweller must be first paid for the valua- 
tion ; as between the jeweller and purchaser, the jeweller has a 
lien ; but as against the lender he has no right to retain the 
jewel." 

147. An attorney may have a special lien upon a fnnd 
in court or in the hands of a receiver, recovered by him, 
and a court of equity, having such a fund in its possession, will 
protect the attorney in retaining out of it a reasonable compensa- 
tion for liia services. 1 The lien in such cases, however, is not 
one for a balance due the attorney for services generally, but only 
for his services in recovering that particular fund. 6 There may be 
circumstances, however, under which an attorney may in effect 
be given a general lien upon money in court recovered by him. 
Thus where the amount due on a judgment recovered for the pur- 
chase price of property sold by plaintiff to defendant is paid into 
a court of equity for distribution, plaintiff's attorneys are enti- 
tled to receive therefrom the money due them from plaintiff for 
meritorious services rendered by them to him in other suits grow- 
ing out of said purchase, where such services were rendered, 

i Water* v. Grace, 33 Ark. 118; McDon- Ohio St. S81 ; Longworui v. Hand;, 2 Die. 

aid v. Napier, 14 Ga. 89 j Pope v. Arm- 75 ; Spencer's Appeal, 9 Atl. Rep. 583; 

■trong, 3 S. A M. 114 1 Sage t>. Wilkin- Fowler p. Lewis {W. Vs.). U S. E. Hep. 

ton, 3 H. & M. 223. 447,457, per Brannon, J. As to Ihc law 

* In re Paschal, 10 Wall. 483. In Georgia, see Morrison ■>. Ponder, 45 Ga. 

* Hollia v. Clarldge, 4 Taunt 807. 167. 

* Central Railroad v. Pettua, 113 U. S. * Fowler t>. Lewis (W. Vs.), 14 8. B. 
US, B Sup. Cl. Sep. 387 ; Cowdrey p. Rail- Rep. 447, 457. 

toad Co. 93 U. S. 353 ; Olds v. Tucker, 35 

96 



3igitiz eC by GOOgk 



UPON HOHSTS COLLECTED. ["§§ 148-150. 

with the expectation that they would be paid for oat of the pro- 
ceeds of each judgment. 1 

148. Even in Pennsylvania, where an attorney's Hen upon 
moneys collected is hardly recognised under that name, but is 
called rather a right of defalcation, a court of equity will protect 
an attorney who is entitled to a compensation oat of a fund 
within its control. Thus, where a fund was brought into a court 
of equity by the services of an attorney, who looked to that alone 
for his compensation, the court, though declaring his interest not 
to be a lien, yet regarded him aa the equitable owner of the fund 
to the extent of the value of his services, and intervened for bis 
protection, awarding him a reasonable compensation to be paid 
out of the fund. 3 What is a reasonable compensation the court 
may determine by itself, or through an auditor, without referring 
the matter to a jury. 8 

149. Bat an attorney nas no general lien upon a fund in 
oonrt recovered by him for his client. His lien in such case is 
a lien upon the judgment, and is a special lien confined to his 
costs or services in the particular proceeding which produced 
the fund. 4 His general lien depends upon possession, and does 
not attach to a fund recovered until be obtains actual possession 
of that fund. If the attorney collects the whole fund, then this 
becomes subject to his general lien ; if, however, he collects only 
such part of the fund as is sufficient to pay his costs or services, 
for which he had a lien upon the judgment, then the amount he 
receives is applicable to such costs or services, and not to his 
general balance of account against the client. 

160. A court has summary jurisdiction over attorneys to 
order the payment of money wrongfully withheld from cli- 
ents. "The summary jurisdiction," said Chief Justice Durfee 
in a recent case, 6 " evidently originates in the disciplinary power 

1 Clafllo p. Bennett, 91 Fed. Rep. 693. tame effect, Dnbois'a App. SB Pa. St. 231, 

* Spencer'a App. (Pa.) 9 AtL Rep. 3S3 ; 80 Am. Dec. 478 ; Irwin v. Workman, 3 

HcKcItj'i App.108Pa.St.615; Freeman Waits, 357. In Che latter caw the fa ad 

v. Shreie, 86 Pa. St. 135. In the latter wai in the hands of the sheriff. 

case Mr. Justice Shariwood said : " It is • McKeWy'l App. 108 Pa. St. SIS. 

true (hat a chancellor will, oat of S fund - * Boson n. Holland, 4 Milne & C. 334 ; 

for dislribution, order compensation to ills Lann v. Church, 4 Mmld. 391. 

counsel engaged, in hia sound discretion, ' Anderson o. Bosworth, 15 K. I. 443, 

according to his estimate of what they S All. Rep. 339. 

reasonably deserte to hive." See, to the 

VOL. I. 7 97 



;y Google 



§ 151.] attorney's general lien. 

which the court has over attorneys as officers of the court-. The 
opinion seems to have been prevalent at one time that the juris- 
diction extended only to attorneys employed as such in suits pend- 
ing in court, to hold them to their duty in such suits ; but a more 
liberal view bas obtained, and it is now well settled that the juris- 
diction extends to any matter in which an attorney has been 
employed by reason of his professional character. 1 In general, 
the jurisdiction applies only between attorney and client ; bat it 
is not confined strictly to that relation." 3 In the case in which 
the decision was rendered, from which this quotation is taken, the 
petition was made, not by the client, but by the opposite party. 
Tbe attorney had received money from his client, the defendant 
in a suit, to be applied " towards the settlement " of the suit, and 
the attoruey had given a receipt for the money to this effect. 
This receipt the client passed over to the plaintiff as so much 
money in the client's hands applicable to the settlement. The 
client claimed the right to retain his fees out of this money ; and 
tbe plaintiff accordingly petitioned the court in which the suit was 
pending for an order requiring tbe attorney to pay over the money. 
The court held that a case was presented for the summary ju- 
risdiction of the court, and that it had discretionary power to 
order the money paid into its registry by a day named. 8 

In an early case in New York, the plaintiff's attorney, in a qui 
tarn action, claimed and received certain costs from the defend- 
ant in partial settlement of the same. The costs were taken in 
tbe mistaken supposition that the defendant was liable to pay 
them. Nearly four years afterwards, upon hie petition, the court 
ordered the attorney to refund them. 1 

161. An attorney who has collected money for a client can- 
not hold the entire amount, and refuse to pay it over, because a 
small part is due to him as fees. He will be allowed to retain 
enough to cover these, bnt no more.* 

i In re Aitkin, « Bain. & Aid. 47, 49 ; » Honlton v. Bennett, 18 Wend. 586, 

Giant's Cue, S Abb. Pr. 3S7 ; Ex parte cited in Anderson v. Boiworth, 15 K. L 

Stats, 4 Cowen,76; Ex parts Crip well, S 443; 8 Atl. llen.339. 

Dow!. Pr. Caa. 689 ; Re Wolf v. , 2 * Miller o. Atlee, 3 Ex. 799, IS Jar. 

Chit. 68; In re Knight, 1 Bing. 91. 431 ; Conyers e. Gmy, 67 Go. 329. Under 

* In re Aitkin, 4 Barn. & Aid. 47 ; Thar- tbe English practice, a solicitor baring a 
rati o. Trcror, 7 Exch. 161. lien upon deedi of property greatl/ ex 

* Anderson v. Bosworth, 15 It. I. 443, eroding in Talne the amonnt of hie bill, 
8 Atl. Rep. 939. m ordered to givn up a portion of them. 



3igitiz eC by GOOgle 



UPON MOSEYS COLLECTED. [§ 152. 

j If an attorney retains money collected for a client, upon a dia- 
J agreement as to the amount due him for services, and the client 
obtains a judgment for a part of the amount retained, the client 

is not then entitled to an order of court requiring the attorney 
\ to pay over the amount of the judgment. He has by obtaining 
C judgment waived the right to a summary process ; for the parties 
J no longer stand in the relation of attorney and client, but in that 

of debtor and creditor. 1 The client's remedy is either by suit 

for by summary process. " If the client is dissatisfied with the 
sum retained," says Chief Justice Black, " he may either bring 
suit against the attorney, or take a rule upon him. In the latter 
case, the court will compel immediate justice, or inflict summary 
*"^ punishment on the attorney, if the sum retained be such as to 
^ show a fraudulent intent. But if the answer to the rule con- 
**■ YJnces the court that it was held back in good faith, and believed 
** not to be more than an honest compensation, the rule will be dis- 
missed, and the client remitted to a jury trial." 1 
162. How a lien mar be pleaded in defence. — In a proceed- 
a ing by a client to recover money collected by his attorney, the 

■ . Utter need not set up in his answer a technical counter-claim for 
the value of his services ; but it is sufficient that he alleges the 
A performances of the services and their value, and his right to 
H retain this sum from the amount collected. If the value of the 
m services is equal to or exceeds the sum collected, he may retain 
\ the whole amount. 8 

m Dn BoiBoo „. Maxwell, W.N. (I8V6) 140; Weeklj Rep.46; Bohanan e. Pe tenon, • 

«B^ Chatbonean e. Ortoo, 48 Wit. 96 ; Bums Wend. 503 ; Cottrell v. Finlayton, 4 How. 

M t. Allen, R. I. 1885, Index W. 31, 1 New Fr. MS. 

W Eog. Sep. 143. • Balabaugh v. Frsier, 19 Fa. SL 95. 

K ' Windsor v. Brown, IS R. I. 182, 9 Sea, also. In re Harrej, 14 Phil*. 287. 

■ Ad. Rep. 135. See, also. In r* Davies, 15 « Ward v. Craig, ST N. T. 550. 



3igitiz eC by GOOgk 



CHAPTER V. 

AN ATTOBNEY's SPECIAL OB CHABGING: LIEN ON JUDGMENTS. 



i 



L_Defliiition and origin of the lien, 
153-157. 
[I. In what Stutes it prevails, 158-161. 

III. Whether the lien is limited to un- 

able costs or include* feet, 165- 
192. 

IV. Bala that there is do lien until 

judgment has been entered, 193- 
£03. 
V. Settlement of suit by the parties be- 
fore judgment, in fraud of the at- 
torney, 303-205. 
VI. Lien upon the cause of action by 
agreement or assignment, 206- 
208. 
TIL When the attorney la required to 



give notice of his lien to the 
judgment debtor, 209-214. 
Till Whether the attorney's lien U sub- 
ject to a right of set-off in the 
judgment debtor, 215-321. 
IX. Effect of su assignment of the 
judgment to the attorney or to 
another, 233-236. 
X. An attorney's lien not defeated 
by attachment or by his client's 
bankruptcy, 227, 228. 
XI. An attorney's lien on his client's 
land which is the subject-matter 
of the suit, 229, 230. 
XII. Walrerof an attorney's lien, 331. 
XIII. An attorney's remedies for enforc- 
ing his lien, 232-240. 

I. Definition and Origin of the Lien. 

153. The lien of an attorney upon a judgment is properly 
denominated a lien in the broad sense of the term, although it 
rests merely on the equity of the attorney to be paid bis fees and 
disbursements out of the judgment which he has obtained. It 
is not a lien that depends upon possession, as liens ordinarily do. 
There can be no possession of a judgment, for this exists only 
in intendment of law. The execution issued upon a judgment 
does not represent the judgment, and the possession of the exe- 
cution is not a possession of the judgment. 1 In regard to pos- 
session, this Hen of an attorney resembles the maritime lien of a 
seaman upon the vessel for his wages. Both liens are exceptions 
to the general rule as respects the element of possession. 

This lien, therefore, not arising from a right on the part of 
the attorney to retain something in his possession, but being a 

1 Wright i>. Cobleigh, 21 N. H. 339 ; Fowler v. Lewis (W. Vs.), 14 S. E. Rep. 
Ward v. Wordsworth, 1 E. D. Smith, G9S ; 44T, 457, quoting text 
100 



3igitiz eC by GOOgle 



DEFINITION AND ORIGIN OF TffB" tlEMl. [§§ 154, 154 a. 

right to recover for his services in obtaining a' judgment for hit 
client, is called the attorney's charging lien. It iff .bo. called be- 
canse the costs and fees of the attorney are made a charge>"upon 
the judgment recovered, and this charge is enforced by thtj-pjjnrtj 
Some confusion has arisen in the decisions on this subject frqnj.- 
a failure in many cases to observe the distinction between the"; 
retaining lien and the charging lien. The latter lien never ex- 
tends beyond the costs and fees due the attorney in the suit in 
which the judgment is recovered ; but a retaining lien extends to 
the general balance due the attorney from the client for profes- 
sional services and his disbursements in connection therewith, 1 
In other words, the charging lien is a special lien, and the retain- 
ing lien is a general lien. 3 

164. By agreement, however, the attorney's lien upon a 
judgment may be made a general lien in equity, and an oral 
agreement is sufficient for this purpose. Thus, where an attor- 
ney had rendered services and expended money in instituting and 
conducting several suits for a client, and it was orally agreed be- 
tween them that the attorney might retain bo much of the avails 
of a particular suit as should be sufficient to pay for all his ser- 
vices, not only in that suit but his previous services in other mat- 
ters, and the attorney having conducted the suit to a favorable 
conclusion and obtained judgment, and after the client's insol- 
vency collected the same upon execution, it was held that he 
bad an equitable lien upon the avails, both for bis services and 
.expenses in the suit and for the previous services covered by the 



The attorney's lien arises generally without an express agree- 
ment therefor. It is founded upon the idea of a contract im- 
plied by law, and is as effectual as if it resulted from an express 
agreement. 1 . 

154 a. The lien, dues, not exist in- favor- trf a prosecuting 
attorney who in his official capacity has obtained a judgment in 
behalf of a state or municipal .'corporation. ■; It. is. not consistent 

1 Weed v . Boutelle, 56 Vt. 570, 579, 48 * Bozon v. BolUnd, 4 Myl. & C. 354. 

Am. Rep. 821 ; In re Wilson, 13 Fed. ' Cooke v. Thresher, 51 Conn. 105. 

Eep. 135, per Brown, J. ; Goodrich v. * Ex parte Bush, 7 Vin. Abr. 74 ; Cow- 

McDootld, 41 Hun, 333 ; Fowler v. Lewis ell o. Simpeou, IS Ves. 279 ; M»«*cbu- 

(W. Vt.), |4 S. R Bep. 447, 457, quoting tern & So. Conn. Co. v. Gill's Creek, 49 

text. Fed. Bep. 146, per Simonton, J. 

101 



3igitiz eC by GOOgle 



§155.] /VafrroRHET's special lien. 

with publi&fecflftfy to allow public property or public funds to be 
detained or.seized to pay the debt of an individual. 1 

16& An attorney's lien for his oosts is not recognized at 
flnniicron law, but only in equity, unless declared by statute. 3 
."."Tlie common law only recognizee liens acquired by possession. 
■ A lien at law is not in strictness either a jut in re, or a jus ad 
rem, but simply a right to possess and retain property until some 
charge attaching to it is paid. The lien of an attorney upon a 
judgment is an equitable lien. 

In a strict sense, there is no such thing as a lien upon a thing 
not in possession. Baron Parke says: 3 "The lien which an 
attorney is said to have on a judgment (which is, perhaps, an 
incorrect expression) is merely a claim to the equitable interfer- 
ence of the court to have that judgment held as a security for 
his debt." More recently Chief Justice Cockburn expressed the 
same view, Baying: * "Although we talk of an attorney having a 
lien upon a judgment, it is, in fact, only a claim or right to ask 
for the intervention of the court for bis protection, when, having 
obtained judgment for his client, he finds there is a probability of 
the client depriving him of his costs." 

Again, Mr. Justice Erie said : " Lien, properly speaking, is a 
word which applies only to a chattel ; lien upon a judgment is a 
vague and inaccurate expression ; and the words equitable lien are 
intensely undefined." 6 

An attorney s lien upon a judgment, as by force of usage we 
are permitted to designate his claim npon the judgment recov- 
ered, is founded upon the same equity which gives to every per- 
son who uses his labor and skill upon the goods of another, at 
his request, the right to retain the goods till he is paid for his 
labor. 4 This equitable principle is derived from the civil law. 

1 Wood vi SiAM llai.)} 28 N..E. Kept' , Aft»'Bec.-B3C{ Forsytbe v. Beveridge, 52 

190; Wallace o. Lawyer, 54 loci. 501,505; 111. 26S, ,4,.Am. Rep. 612 ; Compton v. 

Bradley v. Ricbcpnrd, 6. Vt, 121; ^ nka Slate, 38 Ark. 6m, 603 ; Patrick v. Letch, 

v. Osceola TownsBip. 45 low*, SW; ;Meoi- £ W;Crrry, ffS5, 13 Fed. Hep. 661, per 

phit d. La*ki,~9 HeiAk. in ; Morwia- ;\ McRrarjr, J. ; 

Chicago, 45 III. 133. • Barker v. St. Quint in, 19 H. A W. 

* Simmons e. Almj, 103 Hmi. 33 ,' Biv- 441, 4S1. 

ker c. Cook, 11 Mass. S36; Getchell v. * Mercer v. Graves, L. E. 7 (J. B. 499, 

Clark, 5 Mass. 309; Hill v. Brinkle;, 10 S03. 

Ind. 102; Poller v. Mayo, 3 He. 34, 14 * iirmudoi) v. Allard, 2 E. & E. 17,97. 

Am. Dec. 911 ; Stone v. Hyrfo, 92 Me. ' Weed v. Boulelle, 56 Vt 570, 579, 48 

318; Hobaon e. Wataoo, 34 Me. 20, 56 Am. Rep. 821 ; Tamo v. Parks, 2 How. 
102 



DEFINITION AND OBIGIN OF THE LIEN. [§ 156. 

It is considered reasonable and proper that an attorney, by whose 
labor and at whose expense a judgment has been obtained for his 
client, should have an interest in that judgment which the law 
will regard and protect. 1 Lord Kenyon declared " that the con- 
venience, good sense, and justice of the thing required it." 

156. The time and manner of the origin of this lien are 
not shown by any reported case. Probably it had been the prac- 
tice of judges to aid attorneys in securing their costs oat of judg- 
ments obtained for their clients before the right to the lien had 
been formally adjudicated. 1 It was doubtless recognized upon 
the ground of justice that the attorney had contributed by bis 
labor and skill to the recovery of the judgment, and the court, 
wishing to protect its own officers, exercised its power to that 
end ; or, as Lord Kenyon puts it : 8 " The party should not ran 
away with the fruits of the cause without satisfying the legal 
demands of his attorney, by whose industry, and in many in- 
stances at whose expense, those fruits are obtained." In the 
argument of a case before the King's Bench in 1779, before Lord 
Mansfield,* in which it was Bought to establish a Hen in favor of 
a captain against the ship for his wages, the counsel instanced the 
case of attorneys, who cannot be compelled to deliver up their 
client's papers until they are paid ; upon which Lord Mansfield 
said that the practice in this respect was not very ancient, but 
that courts both of law and of equity had then carried it so far 
that an attorney might obtain an order to stop his client from re- 
ceiving money recovered in a suit till his bill should be paid. Sir 
James Burrough, who was present, mentioned to the court that 
the first instance of such an order of court was in the case of one 
Taylor of Evesham, about the time of a contested election for 
that borough ; and Lord Mansfield said he himself had argued the 
question in the Court of Chancery. 

Doubtless the lien was first established in the courts of chan- 
cery. Lord Hardwicke, in a case before him, in 1749, said : * " I 
am of opinion that a solicitor, in consideration of his trouble, and 

Pt. N. 8. 35; Shaple; o. Bellow*, 4 N. H. ■ Ex parte Bush. 7 Yin. Abr. 74. 

3*7, pe Richardson. C. J. The lien of * Bead v. Dupper, 6 T. B. 361. 

an attomoj upon » judgment was ettab- * Wilkin* v. Carmicbael, 1 Dong. 101, 

lkbed in New Hampshire bj the shore 104. Some yearn afterwards this lien ttu 

decision. Wright n. Cobleigh, 21 N. H. recognized by Chief Justice Wilmot In 

339. Schools v. Noble, 1 H. Bl. 93 (1788). 

1 In re Knapp, 85 N. T. 284. * Tnrwin v. Gibson, 3 Atk. 720. 

103 



L~,o ogle 



§ 15T.] ATTOMET's SPECIAL LIEM. 

the money in disburse for his client, has a right to be paid out of 
the duty decreed for the plaintiff, and bas a lien upon it, . . . 
and it is constantly the rale of this court," 

167. It must be confessed that the origin of this lien ia 
obsoure and uncertain. The attempts to account for it are 
many and diverse. It seems from Comyn's Digest " that it was 
founded on an old rule of court, that a client should not discharge 
hie attorney without leave. Lord Kenyon said the lien depended 
on the general jurisdiction of the court over the suitors. 

Baron Parke refers to Welsh v. Hole, 3 as the first case estab- 
lishing an attorney's lien on a judgment. This lien is declared 
to be merely a claim to the equitable interference of the court 
to have the judgment held for his debt, 8 Baron Martin, adopting 
and explaining this view, says the right of the attorney is merely 
this, that, if he gets the fruits of the judgment into his hands, 
the court will not deprive him of them until bis costs are paid. 1 
These definitions are adopted and further developed in a recent 
decision in Rhode Island, Chief Justice Durfee saying: 5 "Pri- 
marily, without doubt, the lien originates in the control which 
the attorney has by his retainer over the judgment, and the pro- 
cesses for its enforcement. This enables him to collect the judg- 
ment and reimburse himself out of the proceeds. It gives him 
no right, however, to exceed the authority conferred by his re- 
tainer. But inasmuch as the attorney has the right, or at least 
is induced to rely on his retainer to secure him in this way for 
bis fees and disbursements, he thereby acquires a sort of equity, 
to the extent of his fees and disbursements, to control the judg- 
ment and its incidental process against his client and the adverse 
party colluding with his client, which tbe court will, in exercise 
of a reasonable discretion, protect and enforce. And on the same 
ground, the court will, when it can, protect the attorney in matters 
of equitable set-off. We think this is the full scope of the lien, 
if lien it can be called." 

1 Attorney, B. II, 16; alio, Bacon's * Hough «. Edwards, 1 II. ftN. 171. 

Abr. Attorney, £. * Horton t>. Champlin, 19 K. L 550. 

* 1 Dong. 3SS (1779). And tee Massachtttettn & So. Con*. Co. 

« Barker ». St. Quintin, IS M. & W. ». GiU'« Greek, 48 Fed. top. US. 
441, 4S1. 

104 



3igitiz eC by GOOgk 



IN WHAT STATES IT PREVAILS. 



[§158- 



II. In what State* it Prevails. 
168. It mar bo stated as a general rule that an attorney 
has a lien upon a judgment obtained for his olient for his 
costs in the suit. In most of the States tbia rule was first estab- 
lished by tbe courts. In some States the lien did not exist till 
it was declared by statute ; and in several States, in which the 
courts bad established the lien, this has by statute been extended 
or modified so that it is quite a different thing from the lien 
which the courts established and enforced. A summary state- 
ment in a note hereto annexed shows in what States this lien 
prevails in some form ; ' but it will be necessary hereafter to refer 
in detail to the legislation and the adjudications in those States 

1 Bland, 93, the Chancellor ssid that con. 
tract* between solicitors sod auitoca mail 
be decided like other contract!. 

Huischustts : see § 183. 

Michigan : see $ 1TB. 

Kiimesota : see 5 179. 

Xisriasippi : Stewart p. Flowers, 44 
Miss. 313, 7 Am. R. 707 ; Pope v. Arm- 
strong. 3 S. &M. £14 ; Cage d. Wilkinson, 
3 8. 4M. 2S3. See §181. 

Koatana: see 5 189. 

Hobrsska: seef 188. 

Haw Hampshire : Young v. Dearborn, 
27 N. H. 324 ; Carrier v. Boston k M. R. 
R Co. 37 N. H. 223 ; Weill ■>. Hatch. 43 

If. H. 246 j Whitoomb v. Straw, 62 N. H. 



1 The Has nWi m : — 
Alabama: Me 9 189. 
Arkansas : see j 170. 

Colorado : see § 171. 

Connecticut I Gager v. Watson, 11 Conn. 
168, 173; Andrews t>. Morae, 12 Conn. 
444, SI Am. Dec. 762; Benjamin b. Ben- 
jamin, 17 Conn. 110; Cooke r. Thresher, 
SI Conn. 106. 

Florida : see 5 179. 

Georgia: see 5 173. 

Indiana: aae f 174. 

lorn: aee $ 175. 

Ksnsas : aee § 176. 

7 : see § 177. 
. : A special privilege ia granted 
in faror of attorneys at law for the amount 
of their professional fees on all judg- 
ment* obtained by them, to take rank as 
first privilege thereon. Rev. Laws, 1884, 
S 2897. 

stains: TTobaon it. Watson, 31 He. 30, 
66 Am. Dec 632; Newbert it. Cunning, 
ham, 50 Me. 231 ,79 Am. Dee. 61 2; Strat- 
um n. Hussey, 62 Me. 286. The lien ex- 
tendi to fees in suits incidental to the 
judgment obtained. Newbert v. Cunning- 
ham, » Me. £31, 79 Am. Dec 612. 

Maryland : In Marshall t>. Cooper, 43 
Md. 46, 62 (1875), the court said that no 
case involving the question of the attor- 
neys lien bad arisen or been decided in 
the appellate court. In Stokes's Case, 



Haw Janey : Barnes p. Taylor, 30 N. J. 

Eq. 467; Bradeo n. Ward, 42 N. J. L. 

518 ; Heisler n. Mount, 17 N. J. L. 438. 

Hew York: see IJ 184-189. 

sTorto Dakota and South Dakota: see 
1 176. 

Oregon : see j 180. 

Khode Island : see $ 164. 

Sonta Carolina : Scharlock v. Oland, 1 
Rich. 207 ; Miller v. Newell, 20 S. C. 193, 
128, 47 Am. Rap. S33. 

Tennessee: see f 190. 

Vermont ; see § 191. 

Virginia: see § 192. 

W.Virginia: sec J 199. 

Wyoming : see j 188. 

106 



jipismb, Google 



§§ 159-161.] attobhet's special lies. 

where the ordinary lien on a judgment baa been materially 
changed. 

169. In several States the lien does not exist. 1 In most of 
these States an attorney is not entitled to any taxable costs, and, 
tbe lien being in general limited to such costs, it cannot exist 
except by force of special statutes where there are no such costs. 
Generally there can be no lien for unliquidated fees, or for fees 
agreed upon, unless the right be conferred by statute. 3 

160. In California there is no statute giving costs to the attor- 
neys; and, inasmuch as the lien cannot be extended to cover a 
quantum meruit compensation, an attorney in this State has no 
lien on a judgment recovered by him. 8 

161. In Illinois an attorney has no lien upon a judgment for 
Lis fees in the litigation resulting in its recovery; 4 and he has 
none for taxable costs, for there is no statute or rule of court 
allowing specific 6 costs to attorneys. 

But it seems that, where the employment is by a special con- 
tract, the attorney has an equitable lien upon the proceeds of 
the litigation. Thus, where an attorney undertook the collection 
of a debt secured upon land under a special contract whereby he 
was to receive one fifth of the proceeds whether the same might be 
in land or money, and the suit was prosecuted to a decree and sale 
of the land, and the client purchased the land at tbe sale, it was 
held that the attorney was entitled to an equitable lien under the 
contract, and a decree in his favor was entered accordingly. 8 

1 The lien does not exist in: — Wisconsin: Courtney t>- MeGarock, 23 

California. : aee § 160. Wis. 619. 

Illinois: nee § 181. United Statu* Court of Claims : No lien 

Missouri : Attorney! have do lien upon il allowed (o an attorney who has prose- 

judgment ■ for fees. Friasell e. Haile, 18 cuted a case to judgment against the 

Mo. IS; Lewis p. Kinealy, 2 Mo. App. United States. Brooks's Case, 13 Opin. 

33; Robertas. Nelson, 22 Mo. App. 28,31. Attj.-Ren. 216. 
See 8 163. * Swanston v. Morning Star Mining 

Nevada: Apparently tbe lien does not Co. 4 MuCrary, 241. 
exist. * Ex parte Kyle. I Cal. 331 ; Mansfield 

Worth Carolina: Apparently the lien t>. Dorland, 2 Cal. SOT; Baaed! r. Conway, 

does not exist. 11 Cal. 93; Hog an v. Black, 66 Cal. 41. 

Ohio: Data not exist. Diehl v. Friostcr, » Foray the v. Bereridge, 58 III. 268, 

37 Ohio St. 473. 4 Am. Rep. 612 ; Nichols v. Pool, 89 111. 

Pennsylvania : This lien does not exist. 491; Sanders o. Scclye, 128 111. 631, 21 

Texas : An attorney haa no lien for his N. E. Sep. 601. 
servicesnponajudginent. Casey b. March, * La Framboise ». Grow, 56 DL 197. 
30 Tex. 180; A bloc, Lee, 6 Tex. 427, 431 ; « Smith i>. Young, 62 111. 210. And aee 

Whlttaker b. Clarke, 33 Tex. 647. Morgan t>. Roberts, 38 III. 65. 
106 



3igitiz eC by GOOgle 



IN WHAT STATES IT PREVAILS. [§§ 162-164. 

162. In Massachusetts 1 an attorney has no lien at common 
law on a judgment recovered by him ; a but it is provided by 
statute that an attorney lawfully possessed of an execution, or 
who has prosecuted a suit to final judgment in favor of his client, 
shall have a lien thereon for the amount of his fees and disburse- 
ments in the cause ; but this does not prevent the payment of 
the execution or judgment to the judgment creditor without 
notice of the lien. 

Thia statutory lien covers only taxable coats, and does not 
extend to counsel fees.* 

Under this statute an attorney has no lien before judgment 
which will prevent his client from settling with the opposite 
party without the attorney's knowledge or consent. Even after 
judgment, the attorney's lien does not prevent a settlement if this 
be made without notice of the lien. 4 

The attorney of the defendant having recovered a jndgment 
for coBts is entitled to them as against the plaintiff who has 
recovered a judgment against the defendant. The plaintiffs 
judgment should be for the balance after deducting the attorney's 
claim for costs." 

The attorney may enforce his lien upon a judgment by an 
action on the judgment in the name of the client.* 

163. In Missouri it is held that attorneys have no lien for 
their fees upon judgments recovered by them. They are not 
allowed under the laws of this State any fees which are taxed as 
costs. They look merely to contracts made with their clients for 
remuneration for their services. If they recover money for their 
clients, they may retain their fees, just as any bailee may retain 
for any services rendered in the case of the subject of the bail- 
ment. 7 

164. In Rhode Island an attorney probably has a lien for his 
costs upon the jndgment recorded) but it is regarded only as a 
sort of equity to control the judgment and its incidental processes, 

1 P. 8.1889, p. 913, sect. 42. ThUwM * Summon a v. Almy, 103 Mm. 33; 

eridenUj derived from (lie atattite of 1810, Getchell v. Clark, 5 Mum. 309 ; Poller v. 

eh. 64. Msto, 3 Greenl. 34, 14 Am. Dec 111. 

* Baker v. Cook, II Mas*. 236, £38; * Little p. Rogers, 2 MeL 478. 

Dnnklee k. Locke, 13 Mm. 525. ' Wood v. Verrj, 4 Gray, 397. 

1 Ocean I us. Co. c. Rider, Si Pick. 210, » Frissell c. Bails, 18 Mo. 18. 
90 Pick. 359; Thajer v. Daniels, 113 
Moss. 129. 



* Google 



§ 165.] ATTOfeSET's SPECIAL LIEU. 

against bis client and the adverse party colluding with his client. 
The court will, in the exercise of a reasonable discretion, protect 
and enforce this equity. Though the judgment be for costs only, 
it does not belong to the attorney absolutely, so that he is author- 
ized to bring suit upon it without the client's consent. 1 

III. Whether the Lien it Limited to Taxable Costs or Include! 
Fee: 

165. It is also a general rule that an attorney's lien upon 
a judgment for his fees is limited to the taxable costs in 
the case, in the absence of any statute extending the lien. 3 The 
costs for which he has a lien are the taxable costs in the suit in 
which the judgment is rendered. The lien does not extend to 
costs in any other suit. 8 

His lien is limited to the taxable costs included in the judg- 
ment, and does not extend to fees accruing, and advances made 
subsequently; 4 nor to commissions on the amount of the judg- 
ment collected, though a charge of such commissions might prop- 
erly be allowed as between attorney and client ; " nor to disburse- 
ments or incidental expenses not taxable as costs ; 8 nor to costs 
in other suits. 7 The lien upon the fruits of a suit is limited to 
the services rendered therein ; and, although a number of separate 
suits involve the same questions, and are argued and determined 

1 Horton v. Cbmmplin, 1 2 H. I. SSO, 34 are provided that the measure of the at- 

Am. Rep. 723, per Durfee, C. J.: "We tornej'e compensation, forwliicb he should 

think this U the fall scope of the lien, if have a lien, should he left to theagree- 

lien it can be called." See § 157. meat, express or implied, of the attorney 

9 Newberttr. Cunningham, 50 Me. 231, and hie client. Cougblin c. N. T. C. & 

79 Am. Dec 612 ; Hooper v, Brundage, Had. RW. R. R. Co. 71 N. Y. 443, ST Am. 

22 He. 460; Ocean Ins. Co. o. Rider, 22 Rep. 75. 

Pick. 210 ; Currier o. Boston ft Me. R. « Phillips v. Slagg. 2 Edw. 108. 

R. 37 N. H. 223 ; Wright v. Cobleigb, 21 </nn Wilson, 12 Fed. Rep. 23S ; 

N. H. 339 ; Wells t>. Hatch, 43 N. H. 246, Newbert i>. Cunningham, 50 Me. 231, 79 

247; Whitcombv. Straw, 62 N. H. 650; Am. Dec. 612; Cooley o. Patterson, 51 

Weed !>. Boutello, 56 Vt. 570, 578,48 Am. Me. 472; Carrier t>. Boston & Me. R. R. 

Rep. 821 ; Phillips v. Slagg, 2 Edw. 108; 37 N. H. 223; Wells v. Hatch, 43 N. H. 

Ex pane Kyle, 1 Cal. 331 ; Mansfield v. 246 ; Ex ports Kyle, 1 Cal. 331 ; Mana. 

Dorland, 2 CaL 507, 509 ; Massachusetts field ». Dorland, 2 Cal. 507. 

& So. Const. Co. v. Gill's Creek, 48 Fed. * Wright v. Cobleigh, 21 N. H. 337. 

Rep. 145. « Wells v. Hatch, 43 N. H. 246. 

Tbis was the rale in England, until the 'St. John o. Diefendorf, 11 Wend, 

statute of 18 Victoria. This wee the rale 261; Massachusetts & So. Const, Go. ». 

in Htw Tart, until the Code of Prated- Gill's Creek, 48 Fed. Rep. 145. 
108 



Co ogle 



WHETHER LIMITED TO TAXABLE COSTS. [§ 166. 

together, the fruits of one are not subject to a lien for services 
rendered in the others. 1 

The lien does not extend to prospective services in the hearing 
of an appeal. 3 

This lien cannot be defeated by the discbarge of the attorney 
by the client. 8 Tbe lien exists equally whether the services are 
rendered by one attorney or more ; or whether the suit be com- 
menced by one attorney, and prosecuted to final judgment by 
another. 4 

166. An attorney's lien upon an uncollected judgment is 
confined to the judgment in the very notion in which the ser- 
vices were rendered. 6 The theory upon which tbe lien is founded 
is, that the attorney has, by bis skill and labor, obtained the judg- 
ment, and hence should have a lien upon it for his compensa- 
tion, in analogy to the lien which a mechanic has upon any 
article which he manufactures. When, therefore, an attorney 
has several actions for a client, and recovers judgment in but 
one of themghe cannot, in the absence of a special agreement, 
have a lien upon that judgment for his compensation in all 
the actions. 8 And, so, where an attorney recovered three judg- 
ments for bis clients, who afterwards became bankrupts, and 
their assignee selected other attorneys, to whom the first attor- 
ney transferred all the papers upon an agreement that bis lien 
should not be waived, but should be satisfied out of the first 
moneys coming into the assignee's bands out of the suits, it was 
held that his lien in each case was limited to the funds collected 
upon the particular judgment in obtaining which the services were 
rendered ; and, money having been collected upon two of the 
judgments, there was no lien upon this for services rendered in 

' Massachusetts & So. Const. Co. t>. 449; Phillips e. Slagg, S Edw. Ch. 108 ; 

Gill's Creek, 48 Fed. Rep. US. Shipley v. Bellows, 4 N. H. 347 ; Wright 

* Massachosetts & So. Court. Co. v. e. Cobleigb, 11 N. H. 339, 341 ; McWil- 
GUI's Creek, 4 S Fed. Bep. 145. liems «■ Jenkins, 78 Ala. 480 ; t'orbnnh ». 

* Gammon t>. Chandler, 30 Me. 151. Leonard, 8 Minn. 303 ; Weed v. Boutelle, 

* Stratton t>. Hnssev, 62 Me. S86. 96 Vt. 570, 4B Am. Rep. 821 ; Pope v. 

1 Laon e. Church, 4 Madcl. 391; Bo- Armstrong, 3 S. t M. 214; Cage ». Wil- 
son e . Holland, 4 Myl. & C. 354 ; Lucss kinson, S S. & M. S93 ; Fowler p. Lewis 
b. Peacock, 9 Bear. 177; Stephens v. (W. Va.), 14 S. E. Rep. 447,457, quoting 
Weston, 3 Bam. & Cress. 535,538; In text, 

n Wilson, 12 Fed. Rep. 235, 26 Alb. L. s Williams it. Ingersoll, 89 N. Y. 508, 
J. 171 ; Williams p. Ingersoll, 39 N. T. per Esri, J. ; Johnson v. Story, 1 Lea, 114 ; 
BOB, 517; St. John b. Diefendorf, 12 Massachusetts & So. Const. Co. v. Gill's 
Wend. S81 ; Adams t>. Fox, 40 Barb. Creek, 4B Fed. Rep. 145. 
109 



y, Google 



§ 167.] attorney's special lien. 

recovering the third judgment, upon which nothing was cok 
lected. 1 

When several attorneys have rendered services for the com- 
plainant in a suit, they are equally entitled to a Hen for compen- 
sation on the fruits of the judgment; but if one of them has 
obtained an assignment of such fruits, his possession cannot be 
disturbed in favor of another. The equities of all the attorneys 
are equal, but where one of them has obtained an assignment of 
the judgment he has, so to speak, the legal title in addition to his 
equity, and his legal title must prevail. 3 

167. In the United States courts 3 and. In those of several 
States, however, there are adjudications that an attorney's 
lien upon a Judgment covers his services without regard to 
taxable costs in obtaining the judgment, though there be no 
agreement between the attorney and his client as to the amount 
which the attorney is entitled to charge for his services. 1 The 
lien exists for a reasonable compensation, which may be deter- 
mined by the court, or by a referee, upon a surnmanr application. 
The extent of the lien is to be ascertained upon the basis of a 
quantum meruit. It is argued that the rule restricting the lien to 
the amount of the taxed costs arose from the fact that in England 
tbese costs are the only charges for which an action might be 

1 In re Wilson, 13 Fed. Rep. 235, 244, As the fitatules of the United States ei- 
■ well -considered care. Brown, J., say* : pressly recognise the right of attorneys to 
" Neither principle nor authority can sane- charge their clients reasonable compensa- 
tion an increase in the amount of a lien lion for their ficrrices, in addition to tax- 
npon an uncollected judgment through abla costs (Rev. St. U. S. § 823), it would 
subsequent services in independent mat. seem that the United States will also pro. 
ters," tect the implied contract. Massachuselu 

The same rale undoubtedly prevails & So. Const Co. v. Gill's Creek, 48 Fed. 

under the provision of the new Code of Hep. 149. 

Procedure of New York, 1879, § 66, which * Illinois : Henchey e. Chicago, 4t III. 

gives an attorney "a lien upon his client's 136 ; Humphrey v. Browning, 46 III. 476, 

cause of action " from its commencement. 482, per Breese, C. J., 95 Am. Dec 448. 

This refers, doubtless, to ser.ices and Indiana: Hill b. Brinkley, 10 Ind. 101. 

charges in the causa itself, and not to ser- Connecticut : Andrews t\ Morse, 12 Conn, 

vices in any other matter. In re Wilson, 444, 31 Am. Dec 752. Florida i Carter v. 

13 Fed. Rep. 235, per Brown, J. Davis, S Fla. 183 ; Carter v. Bennett, 6 

1 Massachusetts A So. Const. Co. v. Fla. 314. Alabama: Waxfield c. Camp- 
Gilt's Creek, IB Fed. Rep. 143. bell, 38 Ala. 527, 83 Am. Dec 734. Mis- 

* United flute*: Wylie v. Coxa, 15 sisrippi : Pope v. Armstrong, S S, 4 M. 

How. 415; Cowdrey v. Railroad Co. 93 214. Georgia: McDonald v. Napier, 14 

U. 8. 353 ; McPherson ■>. Cox, 96 U. S. Ga. 89. In Illinois and Georgia there is 

404. These arose under express] contract*, no allowance of taxable costs. 

110 



jipismb, Google 



WHETHER LIMITED TO TAXABLE COSTS. [§§ 168, 169. 

maintained ; the services of barristers being in theory gratuitous, 
and their charges only an honorary obligation of quiddam hono- 
rarium; and, consequently, where the payment of the fees and 
charges of an attorney may be legally enforced, as is the case in 
this country, the reason for the restriction fails, and the lien 
should cover fees other than the taxed costs, and should include 
the charges of counsel. The taxed costs of the attorney in Eng- 
land bad no merit or justice superior to the claim of counsel in 
this country for a reasonable compensation ; and, therefore, the 
lien should here be extended so as to secure such compensation. 1 

168. In other States the lien has been extended by statute 
or adjudication so as to cover not merely taxable costs, but 
a reasonable compensation to the attorney for his services in 
obtaining the judgment. The adjudications and statutes whereby 
the lien has been made to cover fees and disbursements instead of 
costs, are so different in the several States that it is necessary to 
state the law for several of the States in detail. 

But even in States which have adopted the rule that the lien 
covers the attorney's compensation, it does not apply when the 
decree is for alimony in a auit by a wife for divorce or separation. 
The alimony is intended for the support of the wife, and the 
greater the necessity for such an allowance, the greater the reason 
why the courts should discountenance its appropriation for any 
other purpose. Counsel must rely upon the costs and counsel 
fee awarded for bis compensation, and therefore no claim to the 
alimony or any part of it, or to the enforcement of it by any 
process issued or otherwise, can inure to the benefit of her 
attorneys. 3 

169. In Alabama it is settled by adjudication that an attor- 
ney has a lien on a judgment for any reasonable fees due him 
from his client for services rendered in its recovery. 8 In support 
of his claim he may prove his retainer or original employment, 

■ WarDeld r. Campbell, 38 Ala. 937, v. Campbell, 98 Ala. 527, 83 Am. Dec 
pet Walker, C. J., 83 Am. Dec. 734 ; 784. The lien seems to have been eatab- 
McDonald d. Napier, 14 Ga. 89, per Nis- liihed in this State by the decision in the 
bet, J. latter case. In HcCaa it. Grant, 43 Ala. 

* Branth p. Branth, 10 N. T. Supp. 963, it waa suggested that the principle 

638; Weill e. Weill, 18 Civ. Pro. Rep. there elated needed limitation ; bat in Ex 

341. parte Lehman, 59 Ala. 631, thin suggestion 

■ Central B. B, Co. e. Petto*, 113 U. waa disapproved, and the principle teat. 
8. lit; Jackson p. Clopton, 66 Ala. 39; firmed. 

Mo**l» ». Norman, 74 Ala. 423 ; Warfleld 

111 



* Google 



§§ 170, 171.] attobnet's special lien. 

or he may show the performance of the services within the know- 
ledge of his client. 1 From the date of the rendition of the judg- 
ment or decree, the attorney is to be regarded as the assignee of 
it to the extent of his fees. 3 

170. In Arkansas an attorney has a lien upon and an interest 
in a judgment which he may have recovered in a court of record 
for bis client ; and when the judgment is for the recovery of real 
or personal property, his lien amounts to an interest to the ex- 
tent of it in the property so recovered. 8 His lien covers not only 
his costs, but compensation for his services to the amount agreed 
upon, if there be any agreement, otherwise to a reasonable amount. 
But the lien is limited to cases where there has been an actual 
recovery, and cannot be extended to professional services, which 
merely protect an existing title or right of property. 4 His lien 
for services does not prevail against one who, in good faith and 
without notice of his lien, bas made payments on account of the 
judgment. The attorney may assert his lien, however, by filing a 
statement of it with the clerk of the court within ten days of the 
rendition of the judgment ; whereupon the clerk makes upon the 
record a memorandum of the lien, which be also indorses upon 
the execution, and such memorandum is made actual notice of the 
lien to all persons. This is necessary, however, only for the pro- 
tection of those who, in good faith and without notice, have made 
payments to the judgment creditor upon or in consequence of the 
judgment. The notice ia not necessary to protect the attorney 
against a purchaser of the judgment. 6 

171. In Colorado it is provided by statute that all attorneys 
and counsellors at law shall have a lien upon any money or 
property in their hands, or upon any judgment they may have 
obtained, belonging to any client, for any fee or balance of fees 
due, or any professional services rendered by them in any court 

1 Jackson u. Clapton, 66 Ala. 29; Ex which he has made for his client. For 

parte Lehman, 99 Ala. 631. the parties, than, to make an; arrange- 

1 Central R, R. Co. v. Pcttns, 1 13 U. mem or settlement between themaelvefi, 

8.116. wilhont hii content, bj which his right 

1 Dig. of Stats. 1881, §5 3622, 3935, might be defeated, would bo a fraud upon 
S939;Lanev. Hallam, 38 Ark. 386; him, against which he" ii entitled to pro- 
Gist ». Hanlj, 33 Ark. 333, 335. Id the lection." 

latter caie, Harrison, J., said : " The at- * Hereby v. Du Val, 47 Ark. 86, 14 S. 

toruey la virtually an assignee of a. por- W. Rep. 469. 

tion of the judgment, or of the debt or * McCain v. Portia, 49 Ark. 401 ; Por- 

cltim, equal to his fee and the advances ter v. Hanson, 36 Ark. 591, 
112 



3igitiz eC by GOOgle 



WHETHER LIMITED TO TAXABLE COSTS. [§§ 172, 173. 

of this State, which lien ma; be enforced by the proper civil 
action. 1 

172. In Florida a lien is allowed upon a judgment for the 
reasonable and fair remuneration of the attorney, the statutes 
not providing for any taxable coats. 3 This lien is superior to any 
equitable Bet-off of the judgment debtor. 

173. In Georgia s it is provided that an attorney, upon suits, 
judgments, and decrees for money, shall have a lien superior to 
all liens, except tax liens, and no person shall be at liberty to 
satisfy the suit, judgment, or decree until the lien or claim of the 
attorney for his fees is fully satisfied. Attorneys at law have 
the same right and power over such suits, judgments, and decrees, 
to enforce their liens, as their clients had or may have for the 
amount due thereon to them. Upon all suits for the recovery of 
real or personal property, and upon all judgments or decrees for 
the recovery of the same, attorneys have a lien on the property 
recovered, for their fees, superior to all liens but liens for taxes, 
which may be enforced by such attorneys, or their representatives, 
as liens on personal and real estate, by mortgage and foreclosure ; 
and the property recovered remains subject to such liens, unless 
transferred to bond fide purchasers without notice. If an attor- . 
ney files his assertion claiming a lien on property recovered on a 
suit instituted by him, within thirty days after a recovery of the 
same, then his lien binds all persons. The same liens and modes 
of enforcement thereof, which are allowed to attorneys who are 
employed to sue for any property, upon the property recovered, 
are equally allowed to attorneys employed and serving in defence 
against such suits, in case the defence is successful. 4 

If no notice of the lien be given, a settlement by the parties 
can be set aside by the attorney only in case he shows that it 
was made with the intent to defeat his lien.* The lien, however, 

1 An not . Sluts. 1891, §212. Thiiinrata required. Fillmore v. Wall", 10 Colo. 228, 

the aitornej irilha lien immediately upon 15 Pic Rep. 343 ; Smelling Co. v. Pleas, 9 

the rendering of ■ judgment in nil ell- Colo. 112, 10 Pec Rep. 652. 

eat'i favor. At between him end hii clU ' Carter v. Bennett, G Fit. 214, 2S7 ; 

ent nothing is required to render aneh lien Carter v. Davie, 8 Fla. 183. 

complete, though to make it valid m * Code 1882, § 1989. And see Morri- 

againit the judgment debtor, notice must eon v. Ponder, 45 Gn. 1ST. 

begiren to him prior to the settlement of ' Code 1882, § 1989. 

the judgment. Johnson b. McMillan, 13 * Hawkins v. Lojlesa, 39 Ga, 3 ; Green 

Colo. 423, 3 Am. St. Rep. 507, 23 Pat. v. Southern Express Co. 99 Ga. 20. 
Rep. 769. No particular form of notice is 

VOL. L 8 US 



y, Google 



§ 174.] attorney's special lien. 

attaches as soon as the suit is commenced ; and the client cannot 
defeat the lien by dismissing the action before trial against the 
attorney's objections. 1 The only notice necessary to a defendant 
in a pending action of the lien of the plaintiffs attorney on the 
suit and its proceeds for his fees in that case is knowledge of the 
fact that the suit has been instituted and is pending. A settle- 
ment made directly with the plaintiff, though without other no- 
tice of the attorney's lien, will leave the defendant liable in the 
action to a recovery for the benefit of the attorney to the extent 
of his fees, if there was a cause of action between the parties; 
and the attorney may prosecute the suit, and recover accord- 
ingly. 3 

After judgment the attorney may proceed to enforce his lien 
upon it by levy, and the judgment debtor cannot arrest the levy 
on the ground that the judgment creditor has agreed with him 
for value to give indulgence; nor can he set up the claim that the 
attorney has been paid, and that therefore he has no lien, unless 
he himself has made such payment. 8 

174. Indiana. — Any attorney is entitled to hold a lien, for his 
fees, on any judgment rendered in favor of any person or persons 
-employing him, to obtain the same, provided he shall, at the time 
such judgment is rendered, enter, in writing, upon the docket or 
record wherein the same is recorded, his intention to bold a lien 
thereon, together with the amount of his claim. 4 

This lien extends to a judgment for alimony obtained by an 
attorney in proceedings for divorce on behalf of the wife. If she 
knows of the lien and assents to the amount of the fee claimed, 
she is bound for such amount.' 

1 Twiggs d. Chambers, 56 Ga. 979. rendered when it in announced by the 

a Little v. Sexton (Ga.), 15 S. E. Rep. court ; jet under this statute, which is 

4!K). loosely drawn, it appear* that it was irt- 

1 Tarver v. Tarver, 5S Ga. 43. tended that the judgment should ho en- 

* Rev. Stat. 1881, % 5276, enacted Dec. tered on the docket or court records be- 
30, 1869. The statute applies onlj to a fore the entry of the attorney's intention 
"judgment rendered." Hanna v. Island to claim Hen upon it; and it follows that 
Coal Co. (Ind.) 31 N. E. Rep. 846. the entry of notice of such lisn can be 

* Putnam v. Tennyson, SO Ind. 456. made at any time within a reasonable lima 
Prior to this statute, attorneys had no after the recording of the judgment j and 
lien on the judgment for their fee*. Hill the entry of such notice upon the day fol- 
■>. Brinkley, 10 Ind. 10!. lowing the entry of the judgment is within 

Entry of notice is essential. Alderman a reasonable time. Blair o. Launing, 
v. Nelson, 111 Ind. 256, 13 K. E. Rep. 61 Ind. 499; Day t>. Bowman, 109 Ind. 
394. Strictly speaking, a judgment is 383, 10 N, Ebbs. Sep. 136. 

114 



- ;: a, y Google 



WBKTHER LIMITED TO TAXABLE COSTS. [§ 175. 

176. Iowa, 1 North Dakota, and South Dakota. 3 — An attor- 
ney has a lien for a general balance of compensation on money 
due bis client in the bands of the adverse party, or attorney of 
such party, in an action or proceeding in which the attorney 
claiming the lien was employed, from the time of giving notice 
in writing to anch adverse party, or Attorney of such party, if the 
money is in the possession or under the control of such attorney, 
which notice shall state the amount claimed, and, in general terms, 
for what services. 

After judgment in any court of record, such notice may be 
given and the lien made effective against the judgment debtor, 
by entering the same in the judgment docket opposite the entry 
of the judgment. 8 

Tbe lien of an attorney for his feea ia the amount ■greed upon in tbe settlement. 

incident to the judgment to which it is Winslow v. Central Iowa R. Co. 71 Iowa, 

attached, and is necessarily as much as- 197, 33 N. W. Rep. 330. Rothrock, J., 

siguable as is the judgment to which it is said : " Counsel for appellant contend that 

incident. Daj v. Bowman, 109 Ind. 383, the lien entered of record was on the 

ION. East. Rep. 12S. judgment, and not upon monej in the 

MRS. 1888, 5§ S93, 294. possesion of tbe adverse par (7 dne the 

An attorney having taken no steps to plaintiff in action. It ia true that the en- 
perfect a statutory lien on a judgment ob- try made upon the judgment docket states 
tained by him, and tbe statute of limits- that a lien, U claimed on the judgment. 
tions having run against his action at law, We think, however, that the plaintiffs had 
be cannot sue in equity to establish a lien no right to make any claim other than 
on the judgment for services rendered un- that provided by statute, and the section 
der an agreement tbat they should be paid of the code above cited does not provide 
(or oat of any judgment obtained. He- for a lien on the judgment as such. It 
Hegney b. Frazer, 1 Ind. App. 98, 27 N. expressly provides for a lien on money in 
E. Rep. 439. tbe hands of the adverse party or bis ai- 

1 Rev. Code, 1877, pp. 39, 33, Eg 9, 10. torney. It is further claimed that, as the 

In Dakota the statute restricts the lien to statute provides, where notice of the lien 

a general balance of compensation in the i* placed upon the judgment docket, and 

ease in which tbe lien is clnimed. thus made effective against tbe judgment 

* Where the plaintiff, in an action for debtor, the notice ceased or expired 
damages for a pergonal injury, agrees in when the judgment waa reversed, because 
writing with his attorney to pay him one there was then no 'judgment debtor.' 
third of tbe amount that may be ulii- We think, however, that the words 'judg- 
■lately recovered, and a judgment is re- merit debtor,' as used in the fourth Sub- 
covered fur S2,000, and tbe attorney enters division of the section above quoted, are 
on the judgment docket notice of " an at- merely descriptive of the person against 
lomey'e lien on this judgment for 13,000 whom the lien may be enforced. It 
for services rendered plaintiff in this will be observed that notice of the liea 
cause," and the judgment is reversed, and upon money in tbe hands of the ad- 
the claim compromised hy tbe partita for verse party is not required to be per- 
il, 650, the lien K> entered is binding upon tonally served after judgment. The ad- 
tbe defendant to tbe extent of oh third tcim party is charged with notice by the 

its 



§ 175.] attorney's special lien. 

Any person interested may release such lien by executing a 
bond in a Bum double the amount claimed, or in such sum as 
may be fixed by a judge, payable to the attorney, with security 
to be approved by the clerk of the court, conditioned to pay the 
amount finally doe the attorney for bis services, which amount 
may be ascertained by suit on the bond. Such lien will be re- 
leased unless the attorney, within ten days after demand therefor, 
files with the clerk a full and complete bill of particulars of the 
services and amount claimed for each item, or written contract 
with the party for whom the services were rendered. 1 

Under these statutes the attorney's lien attaches before judg- 
ment. Even in case the suit is for damages in an action of tort, 
though the lien may not be enforcible until the damages are de- 
termined by judgment, yet the lien attaches from the time of the 
service of notice. This notice must be in writing. 3 It may be 
served at the commencement of the action ; and such notice is 
sufficient to cover all services rendered in the action, whether 
before or after the service of the notice. 8 The Hen attaches 
from the time of the notice, and has priority to any lien of at- 
tachment obtained by proceedings in garnishment subsequently 
commenced. 1 Before notice of the lien the parties may settle 
without reference to the claim of the attorney for his fees ; G but 
not afterwards.* A right of set-off existing at the time the 
notice is given is superior to the attorney's lien ; but the lien is 
superior to a right of set-off subsequently arising. 1 Before UO- 
entrj on the judgment docket. From the farther progress of Che cue, and up to the 
time of such entry he cannot prejudice the actual payment of the demand. We do 
rights of the attorney claiming the lien by not think the fact that ihe word ' judg- 
a settlement with hia client; and a.s the ment' was used in the entry instead of 
law does not place the lien upon the judg- 'snit,' ' action,' or 'claim,' or some other 
ment, but Upon the claim against the ad- equiralent word, Waa a matter of any 
*eree party, or the money in his hands, we consequence in fixing the rights of Ihe 
think the notice remained binding npon parties." 

the defendant as long as the money re- ' Cross t>. Ackley, 40 Iowa, 493. 
snained in its hands. If the plaintiffs had a Phillips v. Germoii, 43 Iowa, 101. 
merely slated in the entry upon the judg- * Smith v. Railroad Co. 56 Iowa, 790, 
ment docket their lien upon the money 10 N. W. Rep. H44. 
claimed of the railroad company, and in * Myers t>. McHugh, IS Iowa, 335, 
its hands, due to the defendant for the in- * Casar v. Sargeant, 7 Iowa, 317. 
jury of which he complained, the notice ■ Fisher v. Oakaloom, SS Iowa, 381; 
would hare been in strict conformity with Brainard v. Elwood, 53 Iowa, 30, S N. W. 
tha statute, and would have been binding Rep. 799. 
on the railroad company through all the * Hum! v. Sheets, 11 Iowa, Ml. 
116 



3igitiz eC by GOOgk 



WHETHER LIMITED TO TAXABLE COSTS. [§ 176. 

tice of the attorney's lien, it is competent for the parties, acting 
in good faith without collusion, to settle the suit without refer- 
ence to the attorney's claim for his fees. 1 

The statutes also provide that mutual final judgments may be 
set off pro tantn, one against the other, upon application and no- 
tice. Under them both the right to set off and the right to at- 
torney's lien are dormant until actively asserted. The judgment 
creditor may not ask for a set-off, and the attorney may not take 
any steps to perfect his lien. The attorney's lien attaches and 
becomes an active instead of a potential right, "from the time of 
giving notice in writing to the adverse party ; " and proceedings 
regularly initiated, though not concluded, in court, to set off mu- 
tual final judgments, will not be affected by a subsequent notice 
by the attorney of his claim for lien. 1 

176. In Kansas 3 an attorney has a lien for a general balance 
of compensation upon any papers of his client which have come 
into his possession in the course of his professional employment, 
npon money in his hands belonging to his client, money due to 
his client, and in the hands of the adverse party, in an action or 
proceeding in which the attorney was employed, from the time of 
giving notice of the lien to that party. 1 Any person interested 
in such matter may release Buch lien by giving security in a pen- 
alty equal to the amount claimed by the attorney, and condi- 
tioned to pay the amount that may finally be found due for his 
services. 

Under this statute the lien exists even when the only claim in 
suit is one for damages for personal injuries, unliquidated and un- 

1 Cssar v. Sergeant, 7 Iowa, 317. under the statute, was required to make 

1 Pirie r. Harkness (S. B.), 52 N. W. ii an operative lien, and did not do It, nor 

Hep. S81. In this case, hofore the altor- attempt to do it, until onotherand adverse 

nay bad given notice to the adverse party light had attached, a right which the eub- 

of hit claim of a lien, this party " had sequent notice did not displace." 
openly asserted and begun to exercise his ■ G. 8. 18S9, ■ 39S. 
right to have these judgments set off, by * Leavenson v. Lafontane, 3 Kens. 5S3. 

giving notice of such application to the The notice must be in writing, and must 

court, as provided by the statute. The be served upon the party personally, or 

attorney claiming the lien knew of this, upon his attorney of record. If the party 

for the notice Was served upon him. When be a corporation, the service mast be npon 

this notice was given, and the judgment a general officer. Service upon a station 

holder's right to set-off was so acted upon, agent of a railroad company is not nutS. 

the attorney's claim for lien was still only dent. Kinase Pacific By. Co. v. Thacher, 

a possibility, — an inchoate tight. He 17 Kan*. 93. 
bad not yet done the very thing which, 

117 



jipismb, Google 



§ 177.] attobney's special lien. 

determined by judgment or verdict. 1 The notice need not state 
nil the amount (or which a lien is claimed. The lien is given for 
the amount agreed to be paid by the client, or, in the absence of 
any agreement, for the reasonable value of the services, 3 "The 
lien of the attorneys attaches to the fruits of the judgment. It 
attaches to the money payable to the client, if it is the proceeds 
of the labor and skill of the attorneys. It attaches also to moneys 
received by way of compromise by the client in the cause, for the 
money is regarded as the fruit of the attorneys* labor and skill. 
And if the client settles the case after judgment, so as to deprive 
the attorneys of their costs and fees, the latter have an action 
against the former." 8 

177. In Kentucky * attorneys have a lien upon any choses in 
action, account, or other claim or demand put into their hands for 
suit or collection ; and when they have been employed by either 
plaintiff or defendant, in any action which is prosecuted to recov- 
ery, have a lien upon the judgment for money or property, either 
personal or real, which may be recovered in such action — legal 
costs excepted — for the amount of any fee which may have been 
agreed upon by the parties, or, in the absence of ouch agreement, 
for a fair and reasonable fee for their services. 

Under this statute, an attorney has no lien before judgment on 
a claim for unliquidated damages in actions of tort; and such an 
action may be compromised and dismissed by agreement of the 
parties, against the objection of the attorney.' If no judgment is 
recovered in a suit, there is nothing to which an attorney's lien 
can attach. 6 

But in a recent decision it was held that where a plaintiff in 
an action to* recover land dismisses the suit upon a compromise, 
by virtue of which the defendant pays off certain claims against 

1 Kansas Pacific Iiy, Co. v. Tbacher, IT inch implied notice or after actual notice, 

Kane. 98. pays the amount of the judgment to the 

1 Kansas Pacific Ry. Co. v. Thacher, IT plaintiff in person, he is still liable to tba 

Kane. 93. attorney for the amount of big lien. Ste- 

* Lindner v. Hfne, 84 Mich. 511, 515, phens v. Farrar, iliuth, 13; and we Rob- 
48 N. W. Rep. 43, per Champtin, C. J. artaon v. Shutt, 9 Bnsh, 659. 

* O. 8. 1888, ch. 5, J 16. Under Ihia • Wood «. Anders, 5 Bash, 601. 
nature the institution and prosecution of « Wilson o. House, 10 Bush, 406. It is 
a suit to judgment is sufficient notice to for the attorney to show the nature and 
the judgment debtor that the plaintiff's extent of bis recovery. Martin v. Ken- 
attorney has a lien upon it for his reason* nedy, S3 Ky. 33S, 

able compensation. If the debtor, after 
118 



3igitiz eC by GOOgle 



WBETBKB. LIMITED TO TAXABLE COSTS. [§§ 177 0-179. 

him, plaintiff's attorney does not by such compromise lose his 
statutory lien on the land sued for. 1 

If by agreement of the parties the action is dismissed, each 
party paying his own costs, and it does not appear that there was 
any intention to defeat the claim of the plaintiff's attorney, he 
can enforce no lien against the defendant. 1 

177 o. Louisiana. 8 — A special privilege is granted in favor of 
attorneys at law for the amount of their professional fees on all 
judgments obtained by them, to take rank aa a first privilege 
thereon. This privilege cannot be extended so as to affect prop- 
erty which the creditor may have acquired in execution or in sat- 
isfaction of the judgment. 4 

178. In Michigan, in 1867, all laws restricting or controlling 
the right of parties to agree with their attorneys for compensa- 
tion were repealed, and the taxable costs were made payable to 
the parties. 5 Since that date the taxable costs form no part of 
the attorney's compensation, but this is left wholly to agreement, 
express or implied. A Hen for such compensation is in some sort 
recognized by the provision that, in setting off executions, one 
against another, the set-off shall not be allowed as to so much 
of the first execution as may be due to the attorney in that suit 
for his taxable costs and disbursements. The result is that, 
although no lien is expressly given to attorneys by statute, the 
courts recognize their lien to the extent of their taxable costs, 
at least, 7 and probably to the extent of the compensation agreed 
upon, 8 or, in case there is no agreement, to the extent of a reason- 
able compensation. 

179. Minnesota. 9 — An attorney has a lien for his compensa- 
tion, whether specially agreed upon or implied, upon money in 

' i Skaggi o. Hill (Ky.), H S. W. Rep. ■ Well) ». F.lsam, 40 Mich. 218. 

363. • O. S. 1891, § 4371. Under this itat- 

1 Rowe p. Fugle, 88 Ky. 10S, 10 S. W. uro the attorney has no lien until he give! 

Rep. 496. notice of it to the Judgment debtor. Dodci 

* It. L. 1884, § 2997. See Botchers' v. Brott, 1 Minn. 270, SS Am. Dec 341. 
Union v. Slaughterhouse Co. 41 La. Ann. If the attorney's compensation has been 
353, 362, 6 So. Rep. 308. agreed upon, the writ must specify the 

1 Luneau s. Edwards, 39 La. Ann. 876, amount of the lien claimed. Forbush n, 
6 So. Rep. 24. Leonard, 8 Minn. 303. Statutory costs 

* Annotated Stats. 1882, § 9004. having been abolished in Minnesota, far 

* Annotated State. 1862, £ 7710. Laws of 1660, p. 244, the lien can exist 
T Kinney v. Robison, 32 Mich. 389, 29 only in case there has been especial agree- 

N. W. Rep. 86. in out as to compensation, Forbush ». 

119 



jipismb, Google 



§§ 180, 181.] attorney's special lieu. 

the hands of the adverse party, in an action or proceeding in 
which the attorney was employed, from the time of giving notice 
of the lien to that party ; and upon a judgment to the extent 
of the coats included therein, or, if there is a special agreement, 
to the extent of the compensation specially agreed on, from the 
time of giving notice to the party against whom the judgment is 
recovered. 1 This lien is, however, subordinate to the rights exist- 
ing between the parties to the action or proceeding. 

180. Oregon. 3 — The statute is the same as the above, with 
the exception that it is also provided that the original notice 
shall he filed with the clerk where the judgment is entered or 
docketed. Under this statute the attorney cannot have a lien 
for his compensation, nnless he has a special agreement as to the 
amount of it. 3 

Under such a statute giving a lien upon "money in the hands 
of the adverse party," something more is required in order to give 
a lien than a mere debt from such party to the client. Money, 
in this connection, means some specific fund which has actually 
come into the party's possession as custodian or trustee, to obtain 
which the suit is brought. After judgment is obtained on the 
demand, or for the money, the lien can be acquired upon the 
judgment only by giving notice in the manner provided by 
statute. 4 

181. Mississippi. — Doubt has been expressed whether an at- 
torney has a lien for his fees on a fund collected under a judg- 
ment recovered by bim, where the amount of his fees has not 
been fixed by special contract, or by established professional usage ; 
and it seems that a lien would not exist for fees resting wholly 
apon the principle of quantum meruit. But, however this might 

Leonard, B Minn. 303. The attorney has claim of a creditor in whose favor execo- 

no lien upon a judgment for compensa. lion hai been levied. The douse reipeet- 

tiun, unless he haa made * special agree- ing notice w» not intended to affect at- 

ment with his client as to the amount of taching creditor", of the judgment creditor. 

It. In rt Scoggin, 5 Sawyer, 549, S Sep. bat was rather intended to regulate the 

390. Bat a different view was taken in a conduct of and to protect the judgment 

later caae, and it was held that under an debtor. Henry c. Trayuor, 42 Hinn. 334, 

implied contract it it sufficient if the no- 44 N. W. Rep. 11. 

tice fairly inform the party that a lien la '2 Annot. Lawa 1893, £ 1044. 

claimed, what it is for, and upon what it * In re Scoggin, 5 Sawyer, 549, 8 Minn. 

U to be indorsed. Crowley v. Lo Dae, 21 303, 8 Rep. 330. 

Hinn. 413. * Inn Scoggin, 5 Sawyer, 5*9, 8 Hep. 

1 Under this provision an attorney's 330. Thia cue arose upon the statute of 

lien upon a judgment la superior lo the Oregon. 
120 



3igitiz eC by GOOgle 



: -LIMITED TO TAXABLE COSTS. [§§ 182, 183. 

be, it was held that such a lien could not be asserted on the trial 
of a motion against the sheriff for failure to pa; over money col- 
lected on execution issued upon such a judgment. The attorney's 
claim should be asserted directly, and not in this collateral way. 1 
It is clearly settled that the lien of the attorney attaches upon 
judgments recovered by him, with their incidents and fruits; but 
it is difficult to make out, from the decided cases, the various lim- 
itations, conditions, and incidents of such lien. 8 

182. Montana. 8 — All attorneys have a lien upon moneys in 
their hands, and upon judgments obtained for any client for any 
fees or balance of fees, due or to become due, for any professional 
services rendered by them in any court or courts of the State. 
Such lien is deemed to attach from the commencement of the 
action or the performance of such services, and extends to and 
includes reasonable fees therefor. Notice of the lien claimed 
upon any judgment must be filed in the office of the clerk of the 
court in which the judgment is obtained, or with the probate 
judge or justice of the peace rendering judgment, within three 
days after final judgment shall have been entered ; and it is the 
duty of the clerk of the court, probate judge, or justice of the 
peace, with whom such notice may be filed, to indorse on such no- 
tice the date of filing, and to file the same with the papers per- 
taining to the cause. In case notice of the lien be not filed as 
provided, the lien does not attach to such judgment. 

183. In Nebraska 4 and Wyoming 6 an attorney has a lien 
for a general balance of compensation upon money in the hands 
of the adverse party in an action or proceeding in which the at- 
torney was employed, from the time of giving notice of the lien 
to that party. 

Under the statute it was regarded as doubtful by the Circuit 
Court of the United States whether an attorney can enforce a 
lien upon a judgment obtained by him for his client against a 
third person ; for a judgment is not money in the hands of the 
judgment debtor belonging to his client. 8 

There can be no lien before judgment upon a cause of action 

• Pugb p. Boyd, 38 Miss. 336. And u« * Comp. Stat. 1881, p. 66, ch. 7, § 8. 
Stewart v. Flowers, 44 Misn. S13, 7 Am. * R. S. 1867, 5 138; Act of December 
Itep. 707. 9, 1869, £ B. 

' See Stewart v. Flowers, 44 Mb*. 513, * Patrick n. Leach, 2 McCrarr, 639, IS 
7 Am. Rep. 707. Fed. Hep. 661. 

* Comp. Law*, 1887, p. 623. 

121 



, Google 



§ 184.] attorney's special urn. 

for tort which, in case of the death of either of the parties, would 
not survive. 1 

The notice required by this statute is a personal notice, and it 
should be in writing. 3 

This lien covers the attorney's reasonable fees and disburse- 
ments in the suit, and is paramount to the right of the parties 
in'the suit. But the lien is restricted to the claim set forth in 
the notice. 8 

184. In New York, prior to the Code of 1848,* an attorney 
had a lien npon a judgment recovered by him, but the amount 
of liis lien was limited to his taxable costs. By that code the 
taxation of costs was abolished, and the compensation of the 
attorney was left to be determined by the contract of. the parties, 
either expressly or impliedly made. The implied equitable lien 
was consequently extended to cover the agreed compensation, 
whatever the amount, in all cases where the cause of action was 
assignable or judgment was obtained. To the extent of his com- 
pensation the attorney was deemed an equitable assignee of the 
judgment, and had a lien upon it when recovered.* In the ab- 
sence, however, of any agreement on the subject, it was at one 
time thought that the amount of the taxable costs continued to 
be the measure of compensation allowed to the attorney, and con- 
sequently the extent of his lien. 6 But the rule seems afterwards 
to have been well settled that the attorney might, in the absence 
of a definite agreement as to the amount of his fees, recover the 

1 Abbott v. Abbott, la Neb. 503, 36 N. The cue or Haight i>. Holcomb, 16 

W. Rep. 361. How. Pr. 173, ia Overruled. 

1 Patrick r. Leach, a McCrary, 635, 12 • Rooney v. Second Ar. R. R. Co. IB 

Fed. Rep. 661. H. T. 368, per Harris, J. ; Adims t. Fox, 

1 Griggs b. While, 5 Neb. 467 ; Boyer 40 Barb. 443. It was thought thai, if a 

•i. Clark, 3 Neb. 161, 16S. lien were allowed for an attorney's sor- 

* 5 308. vices where his compensation was not 

* Roonej v. Second At. R. R. Co. IS agreed npon, the effect might be to lie up 
N. Y. 368; Marshall v. Meech, SI N. Y. the collection of tbe judgment until the 
140, 143, 10 Am. Hep. 573 ; Wright v. attorney could go into court and recover 
Wright, 70 N. Y. 100 ; Ward v. Syme, 9 another judgment against bis client fixing 
How. Pr. 16; Coughlin v. N. Y. Cent. & the amount of his compensation In the 
Hud. R.R.Co.71 N.Y.443,27 Am.ltep. original suit. This seemed to be an ex- 
79 ; Crotty c. Mackenzie, 52 How. Pr. 54 ; Iraordinary proceeding, and one for which 
Tullis v. Bushnell, 65 How. Pr. 465 ; Hall there wai do precedent. 

p. Ayer, 9 Abb. Pr. 220 ; Smith v. Central 
Trust Co. 4 Dem. 7S, 77. 
122' 



3igitiz eC by GOOgle 



WHETHER LIMITED TO TAXABLE COSTS. [§§ 185, 186. 

reasonable value of his services ; and such value ia & fact to be 
established, like any other fact, by evidence. 1 

186. Under the preaent Code of New York, 2 the compen- 
sation of an attorney or counsellor for bis services is gov- 
erned by agreement, express or implied, which is not restrained 
by law. 8 From the commencement of an action, or the service 
of an answer containing a counter-claim,* the attorney who ap- 
pears for a party has a lien npon his client's cause of action 
or counter-claim, which attaches to a verdict, report, decision, or 
judgment in his client's favor, and the proceeds thereof, in whose- 
soever hands they may come, and cannot be affected by any 
settlement between the parties before or after judgment. 

This provision gives full and complete protection to the attor- 
ney. His lien extends to both costs and services, and cannot be 
affected by a settlement between the parties, though no notice of 
the lien be given. 8 

186. In New York the lien is now npon the cause of 
action, and continues till a final judgment is reacbod. It is 
not in terms npon the judgment. It attaches to every verdict, 
report, decision, or judgment iu the client's favor. 6 The lien, 
being upon the cause of action, continues until a judgment is 
rendered which is final. It does not cease upon the first judg- 
ment rendered, if this be not final. If such a judgment be ren- 
dered against the plaintiff, thia may be reversed, and the cause 
of action established in favor of the plaintiff by another judg- 
ment. If the first and erroneous judgment destroyed the lien, 
there could be no lien thereafter, for the lien is created by the 

1 Whitriegge r. Da Witt, IS Daly, 819; How. Pr. 78, 4 N. T. Cir. Pro. 44 ; McCabe 

Garr v. Mai ret, 1 Hilt 498; Gallup v. v. Fogg, 60 N. Y. 488 ; Laming ». Entign, 

Perne, 10 Hun, 535. 62 N. Y. 361 j In re Bailey, 66 N. T. 64 ; 

1 Code Cir. Pro* 1S79, | 66 (July 10, Tulli* t>. Buahnell, 65 H. Y. 465 ; Kehoe 

1879). v. Millar, 10 Abb. N. C 393 ; Murray P. 

* Tnrno ». Parks, 3 How. Pr. N. S. 35. Jibaon. S3 Hun, 386 ; Cotter v. Green- 

* The defendant'* attorn t y haa no lien point Ferry Co. 5 N. Y. Cir. Pro. 146; 
where ihe claim aei up by tbe defendant Dimick u. Cooley, 3 N. Y. Cir. Pro. 141 ; 
doea not conatituta a cause of action, ao Lewia p. Day, 10 Week. Dig. 49 (affirmed 
ai properly to constitute a connler-daim by Court of Appeals, 31 Alb. L. J. 804) ; 
within the meaning of tbe term aa used in More v. Bowen, 9 Rep. 588 ; Goodrich ■- 
the statute, bat b a claim which could McDonald, 41 Hon, 335 ; Oliwill p. Vet- 
only be sot up in reduction of tbe damagea denbalren, 7 N. Y. Supp. 99. 

which the plaintifFmigbt recover. Hereon • Goodrich r. McDonald, 3 N. Y. St. 
v. Saffbrd, 30 Hun, 531. Rep. 144 ; Whi taker p. H. Y. & Harlem 

* Albert Palmer Co. p. Van Orden, 54 B. fi. Co. S N. Y. St. Bep. 537. 

128 



y, Google 



§ 187.] attorney's special lien. 

commencement of the action. It follows that the lien must 
continue until the judgment is final, either for want of power 
to appeal, or for failure to appeal in time. A final judgment 
against the plaintiff determines that there was no cause of action, 
and, therefore, nothing to support a lien. It follows, also, that 
a client has not absolute right to stop the litigation after a judg- 
ment against the plaintiff upon the merits ; but this right is 
subject to the attorney's lien for his costs and the attorney's 
approval. While that judgment remains the plaintiff has no 
cause of action, and the attorney has practically, by the judg- 
ment, lost the benefit of his lien. If the attorney is not content 
with the judgment, and wishes to remove the advene judgment 
as an obstacle in the way of enforcing his lien, his only remedy 
is to appeal and prosecute the action to final judgment. And 
this he may do. He may, at his own expense, prosecute the 
appeal against the wishes of the client in order to obtain a 
reversal of the judgment, so that, upon a new trial and a favor- 
able judgment, he may have the chance of collecting his costs 
from the opposite side by means of such judgment. 1 

187. Under the Code of New York the costs recovered in a 
suit belong to the party and not to the attorney. 1 He simply 
has a lien for his compensation, whether this exceeds in amount 
the costs taxed in the judgment, or falls short of the amount of 
such costs. 8 Thus the attorney may agree with his client to 
receive a share of the recovery in addition to his costs and dis- 
bursements, in lieu of all charges for his services, and his interest 
in the action cannot be affected by any compromise made between 
the parties.* But it seems that there can be no lien for compen- 

1 Adsit i'. Hall, 3 How. Pr. N. S. 373. express or implied, which b not restrained 

1 Wheaton u. Ncwcombe, 16J.4S.S15; by law." Smith e. Central Trust Co. 

Stow v. Hamlin, 11 How. Fr. 452 ; Gair 4 Dem. 75, 78. 

v. Mairet, 1 Hilt. 498 ; Enston v. Smith, 1 ■ Wlicaton r. Nowcombe, 16 J. & S.21S ; 

R.D. Smith, 318; Moore b. Westerrelt.S Rooney b. Second Av. R. R. Co. IB N. Y. 

Sandf. 732; Bartle p. Oilman, IB N. T. 368; McGregor ■>. Conutock, 28 N. T; 

260,262; Vnn Every v. Adam*, io J, & 8. 237; Marshall V. Meech, M M. V. 140; 

126. The amendment in 1879 of} 66 of Wright v. Wright, 70 N.T. 98, 100; Pul- 

the Code of Civil Procedure does not ver b. Harris, 52 N. Y. 73; Crotty v. Mc- 

stato in words what (he attorney's lien la Ktniia, 10J.&S. 192; Crcigbton r. Inger- 

for, but loaves this to be determined by the soil, 20 Barb. 541 ; Brown ■>. New York, 

provision of the ™de an it previously stood, 11 Hun, 21. 

which declared that " the compensation of * Fortsman c Schultlng, 35 Hon, 501. 

the attorney is governed by agreement, 

124 



- ;: ^J y Google 



WHETHER LIMITED TO TAXABLE COSTS. [§§ 188, 189. 

ration, beyond the taxed coats based upon an express agreement, 
unless the agreement be made before or pending the action. It 
cannot be based upon an agreement made after judgment. 1 

An attorney who appears and answers for the defendant after 
notice that the parties have settled, acquires no lien for costs. 1 

188. Under the code the amount of the attorney's com- 
pensation for which he has a lien is" undefined, unless there be 
an express agreement of the parties. 8 When the right is clear 
and only the amount is in question, this may be determined upon 
a petition and reference, or by the judge, or by a jury passing 
upon an issue sent to it. Upon a summary application by a client 
to compel the attorney to pay over moneys collected, the court has 
jurisdiction to determine the question of the amount of bis com- 
pensation, where this is. the only matter in dispute, although the 
items of his account are such as in ordinary cases would subject 
them to taxation. 4 

189. In New York the attorney must take the same steps 
to establish his lien upon the cause of action that he was 
previously required to take to establish it upon the Judg- 
ment; that is, he must obtain leave of court to prosecute the 
action for the purpose of determining his right of recovery in the 
suit, and for the purpose of establishing his lien upon the sub- 
ject-matter of the action ; though it would seem that he is not 
required to show that the settlement was a fraud upon him, but 
only that it inequitably affected his lien upon the cause of 
action. 6 After a settlement between the parties, the lien cannot 

1 Smith v. Central Trust Co. 4 Dem. * McCabe a. Foge. 69 How. Pr. 488 ; 

73, 78. Smith tr. Beum, ST How. Pr. 367 ; Tullia 

1 Howard v. Riker, 11 Abb.N.C. US. v, Bnihnell, 65 How. Pr. 465; Albert 

* In rt Knap]., 85 S. Y. 884; Wright Palmer Co. v. Van Ordra, 64 How. Pr. 
«. Wright, TO N. T. 96; Zogbaum ». T9; Goddard p. Trentmih, 34 Hon, 183; 
Palter, 55 N. T. 120; Manna]] v. Meech, Wilber v. Baker, 14 Hon, S4; Jenkins v. 
51 N. Y. 140, 143, 10 Am. Rep. 573; Adams, 24 Hun, SS, 600; Dimlck n. 
Coughlta p. N. T. C. & H. K. Co. 71 N. T. Cooler, 3 N. Y. Cir. Pro. 141 ; Ackerman 
443, 27 Aid. Hep. 73 ; Ackerman e. Acker- p. Ackerman, 14 Abb. Pr. 229 ; Palmer v. 
nun, 14 Abb. Pi. MS; Browne. Hew York, VanOrden, IT J. * S. 89; Thompkins v. 
11 Hun, 21, 9 Hon, 587 ; Roouejc. Second Manner, IS J. & S. 511; Ollwill n. Ver- 
At. B.H. C0.I8N. Y. 368; McGregor*, denhaieen, T H. Y. Supp. 99; Kehoe e. 
Comrtoek, 28 N. Y. 237; Crolly c. Mo- Miller, 10 Abb. N. C, 393; Deotacta v. 
Keniie, 10 J. ft S. 193. Webb, 10 Abb. N. C. 393; Qulnnaa 

• In re Knapp, 85 N. Y. 384 ; Com- v. Clapp, 10 A bb. H. C. 394 ; Rnseell ». 
mercial Telegram Co. v. Smith, 10 N. Y. SomerviUe, 10 Abb. N. C. 395 ; ■ ' 
on pp. 433. 

126 



3igitiz eC by GOOgle 



§§ 189 fl-190.] ATTOBNEl's SPECIAL LIEK. 

be enforced upon a mere motion to compel the defendant to pay 
the plaintiff's, attorney bis taxable cost by awarding a judgment 
therefor. 1 

No notice of a lien on a judgment which is exclusively for costs 
and disbursements is required, as the record itself is sufficient 
notice of the existence of .the lien and a discharge obtained by 
payment of the judgment to the client, and not to tbe attorney, 
may be set aside on motion. 9 

189 a. In South Carolina an attorney's lien is limited to his 
disbursements and the costs taxed ; and therefore a federal court 
sitting in that State cannot declare a lien on the fruits of its judg- 
ment for services rendered in the state courts in litigation con- 
cerning tbe same subject-matter. There is no provision by statute 
on the subject, and that rule of the English courts is followed 
strictly. 8 

189 b. Oklahoma Territory. — An attorney has a lien for a 
general balance for compensation in and for each case upon : 
1. Any papers belonging to his client which have come into hia 
hands in the course of his professional employment in the case 
for which tbe lien is claimed. 2. Money in his hands belonging 
to his client in the case. 3. Money due his client in tbe hands of 
the adverse party or attorney for such party in an action or pro- 
ceeding in which the attorney claiming the lien was employed 
from the time of giving notice in writing to such adverse party or 
attorney of such party, if the money is in the possession or under 
the control of such attorney, which notice shall state the amount 
claimed, and in specific terms, for what services. 4. After judg- 
ment in any court of record such notice may be given, and the 
lien made effective against the judgment debtor, by entering the 
same in the judgment docket opposite the entry of the judgment. 4 

190. In Tennessee the attorney's lien attaches not only to the 
judgment but to tbe property, whether real or personal, which 
is the subject of the litigation. 5 The attorney is entitled to an 

rfal Telegram Co. t>. Smith, ION. Y. Snpp. * Seharlock v. Olind, 1 Rich. L. SOT ; 

433. Miller o. Newell, 30 S. C. 123, 128 ; Mu- 

Under the pretest code it bcbidb that tbe saehusetta & So. Const. Co. v. Gill ■ Creek, 

attorney mar proceed without leave of 48 Fed. Rep. US. 

court. * Comp. Stan. 1890, § 393. The lien 

1 Smith v. Biain, 67 How. Fr. (67. ma; be dissolved by bond. Camp. Silts. 

1 Kaufmnn v. Keenan, 2 N. Y. Snpp. 1890, § 394. 

39S. * Hunt v. McClanah.ui, 1 Hei.lt. 603; 
126 



3igitiz eC by GOOgle 



WHETHER LIMITED TO TAXABLE COSTS. [§ 191. 

equitable Hen on the property or thing in litigation for his just 
and reasonable fees, and the client cannot, while the suit is pend- 
ing, so dispose of the subject-matter in dispute as to deprive 
the attorney of bis lien. 1 If property be attached in the suit, the 
attorney has a lien upon such property for his fees. 3 The lien 
dates from the commencement of the suit, and its pendency is, of 
itself, notice to all persons of the existence of the lien. It may be 
preserved and extended by stating its existence in the judgment 
or decree. Notice from the pendency of the suit affects not only 
the client, but his creditors and purchasers, and the defendant as 
well. 8 

191. In Vermont an attorney has a lien for his costs upon a 
judgment recovered by him in favor of his client; but this lien 
does not bind the opposite party so as to prevent his settling or 
discharging the suit and cause of action. 4 In the early decisions 
this lien was confined to the taxable costs in this suit. G But in 
a recent decision the rule was established that the lieu extends 
to the attorney's reasonable fees and disbursements in the suit 
in which the judgment was recorded. " No good reason can be 
given," say the court, 8 " for limiting an attorney's charging lien 
to what under our law are the taxable costs in favor of his client 
in the suit. If he is to be given a lien at all upon a judgment 
recovered by his services, it should be to the extent of the value 
of bis services in the suit. His services are presumed to have 
been skilfully performed, and valuable because so performed. 
They enhance his client's claim presumably to the extent of the 
value of his services, the Bame as the tailor's services, in manu- 
facturing a patron's cloth into a coat, enhance the value of the 
materials to the extent of the value of the services. We are 
aware that the decisions in this country are not uniform on the 
extent of an attorney's charging lien. In some States it is held 
to cover his reasonable charges and disbursements in the suit, 

Brown o. Ridley, 3 Tenn. Ch. 618 ; Garner Walker i>. Sarptnt, 14 Vt. S47 ; Beech v. 

■.Garner, I Lea, 39; Vanghn v. Vaughn, Canaan, 14 Vt. 48S; Smallej o. Clark, SB 

IS Heiak. 473; Perkins ». Perkins, 9 Vt. 598 ; Fairbanka u. Devereaux, 58 Vt. 

Heiak. 99. 3S9, 3 Atl. Rep. 900. 

1 Hnnt e. McClanahan, 1 Heiak. 503 ; * Hearlt b. Chipman, 3 Aik. 163. 

Pleasanta v. Korlrecht, 5 Heiak. 6S4. « Weed v. Bontelle, 56 Vt. 570, 580. 

' Pleasanta v. Kortrecht, 6 Heiak. 691. 48 Am. Rep. 821 ; Hooper v. Welch, 43 

• Covington n. Raw, 88 Tenn. 496, 13 Vt. 169, 17!, 5 Am. Rep. 367; Huicbiu- 
S. W. Rep. 1039. ton v. Howard, 15 Vc 544. 

* Hnichinaon r. Pettea, 18 Vt. 614; 

127 



y, Google 



§§ 192, 193.] attorney's special lien. 

while in others it is limited to the amount of costs taxable in 
favor of bis client in the suit. But these are what the law allows 
to be recovered in favor of the prevailing party. They are taxed 
between party and party, and not between attorney and client, 
and are in no sense the measure of the value of the attorney's 
services and disbursements in the suit. They include frequently 
court, clerk, witness, and officer's fees, in the suit, which the 
client has advanced. I cannot help thinking that this class of 
decisions has its origin in not observing the distinction between 
taxable costs which, at the common law, was a taxation between 
the attorney or solicitor and his client, and taxable costs under 
our statutes, which is a taxation in favor of the recovering party 
against the defeated party." 

192. Virginia and West Virginia. — Formerly the attorney's 
lien was limited to his fees taxed in the costs. 1 But in the Vir- 
ginia statute of 1840, 2 reenncted in West Virginia, 8 attorneys 
are authorized to make contracts with their clients for their fees, 
and their liens on judgments received cover not merely their tax- 
able costs, but their services and disbursements.* While the lien 
is a special lien for services rendered in obtaining the particular 
judgment or decree, yet it extends to all services rendered in ob- 
taining that judgment or decree, though the services may have 
been rendered in other suits, if these are so connected with the 
principal cause as to form the basis on which the judgment or 
decree is rendered, or is essential to the rendering of such judg- 
ment or decree. 6 

IV. Rule that there it no Lien until Judgment hat been 
Entered. 

193. An attorney has no lien for costs until a judgment is 
entered, or at least until after the verdict; unless it is given 
upon the cause of action by statute, as is now the case in New 
York under the present code; 8 and, until the lien attaches, the 
parties can settle the suit regardless of bis claim for costs. 7 The 

1 Mijor v. Gibson, 1 Patt. & H. 48. * Code of Civ. Proc. 18T9, § 6G. See 

1 Code 1873, ch. 160, § 11. § IBS, supra. 

* Code 1887, ch. 119, § 13. ' Bow York : Conghlin v. N. T. C. * 

« Renick e. Luilington, 16 W. Va. 378 ; Mud. fiiv. K. Co. 71 K. Y. 443, 27 An. 

Fowler v. Lewis (W. V«.), 14 S. E. Rep. Rep. 73 ; Wright v. Wright, 70 N. Y, 93, 

447, 457. 7 Dalj, 62 ; Roonev u. Second Ar. R. R. 

» Renick v. Lndington, 16 W. V*. 378. Co. 18 K. Y. 368 ; Manball v. Moech, SI 

128 



3igitiz eC by GOOgk 



NO LIEN UNTIL JUDGMENT HAS BEEN ENTERED. [§ 193. 

retaining of an attorney to prosecute an action, and the com- 
mencement of it by him, gives him no lien upon what may in 
the event of a trial be recovered therein ; ' for otherwise it would 
not be in the power of the parties to settle their controversy 
until sach lieu should be satisfied, and it would be in the power 
of the attorney to continue the litigation for his own benefit in 
case of a favorable result, without incurring any liability should 
the result be adverse. 1 Accordingly, in a case where a judgment 
was recovered by a plaintiff in an action for assault and battery, 
and he assigned this to his attorney as security for costs, giving 
notice of the assignment to the defendant, but upon appeal the 
judgment was reversed and a new trial was granted, and before 
the new trial was had the parties settled, and the plaintiff exe- 
cuted a release to the defendant, it was held that, tlie assignment 
of the judgment having become a nullity by the reversal, the at- 
torney bad no lien, either legal or equitable, and could not pro 
ceed with the action and obtain a further judgment. The de 
fendant, after a reversal of the judgment, had a right to settle 
with the plaintiff, and was not bound to take care of the inter- 
ests of the attorney, though knowing that the attorney relied 
upon the fruits of the action as security for his services. The 
defendant owed no duty to the attorney, even so far as to inform 
him of the settlement, bo as to save him from expending labor 
and money in preparing for a new trial.* 

N. T. 140, 10 Am. Hep. 572; Crotiy v. 31 N.E. Rep. 846. Other ttstal I Lemon t 

HacKeuiie, 52 How. Pr. 54; Shunt v. o. Railroad Co- > Hack. 502; Getchell 

Shoemaker, IB N. Y. 489; Sweet v. Bart- v. Claik, J Matt. 309; Brown v. Biglcy, 

lett, 4 San Jf. 661 ; Tullii v. Bunnell, 65 3 Tenn. Ch. 618 ; litncnaj d. Chicago, 41 

How. 1'r. 465; Brown ■>. New York, 11 III. 136; Mosclcy v. Norman, 74 Ala. 422. 

Hon, 31; Sullivan v. O'Keefe, 53 How. Contra: That an attorney's lien for coin- 

Fr. 436 ; Christy v. Perkins, 6 Daly, 337 ; panwtion attaches to the caoae of action. 

Qnincey u. Francis, S Abb. N. C. 286. Kecnan a, Dorflinger, 19 How. Pr. 153. 

Vermont: Fool v. Tewksbnry, 2 Vt. 97; In Naw York, lince the Code of 1679, 

Walker v. Sergeant, 14 Vt. 247 ; Hatch- the lion attaches to the cause of action. 

inaon n. Howard, IS Vt. 544 ; Hooper v. So also in Georgia, and in TpmimiT the 

Wi-lch,43 Vt. 169,5 Am. Hep. 267; Weed lien by statute date* from the oommeocc- 

r. Bonielle, 56 Vt. 570, 578. Naw Hamp- mem or the action. See £§ ITS, 188, ISO, 

thin'. Wells ». Hatch, 43 N. H. 246; lupra. 

Young 8. Dearborn, 27 N. II. 324. Maine : ' Kirby a. Kirby, 1 Paige, 565. 

Potter r. Mayo, 3 Ma 34, 14 Am. Dee. * Pnlrar p. Harris, 52 N. Y. 73, per 

211; Gammon n. Chandler, 30 He. 152; G rover, J. And aee Henchey t, Chicago, 

HobaoDf. Watson, 34 Me.20,56 Am. Dec. 41 III. 136. 

632; Averiil d. Longfellow, 66 Ha. 337. * Pnlver t>. Harris, 53 N. Y. 73, affirm- 

Indiana: Hanna a. Island Coal Co. (Ind.) ing 63 Barb. 500. 

vol i. 9 129 



* Google 



§§ 194, 195.] attorney's special lien. 

194. The entry of a default does not constitute a perfected 
Judgment, and the parties may after that, and before an actual 
entry of judgment, make a bond fide settlement of the claim and 
costs of suit without reference to the attorney's fees. He has 
then no lien that can stand in the way of such a settlement. 1 

An order of court after verdict, that judgment be entered on 
the verdict, is deemed to be a judgment so far as to give the 
attorney his lien. Such order is a final determination of the 
case, and is the end of all litigation as to the merits of the case. 
The time when the judgment is entered up in form is imma- 
terial. 8 

When exceptions are taken in the trial court, and these are 
overruled or sustained by the law court, the certificate of that 
court making a final disposition of the cause is the final judg- 
ment of the court, and the attorney's lien attaches when tbe cer- 
tificate is received by the clerk of the court in which the suit is 
pending, and a subsequent settlement of the parties cannot be 
allowed to defeat it. 3 

Whether a final judgment has been rendered or not depends 
upon the records of tbe court in which the trial was pending. 
Whether an appeal baa been taken from the judgment must be 
shown from tbe records. 4 When the judgment is against several 
defendants, an appeal taken by one of them operates in his favor 
alone, and as to the defendants who have not appealed, the attor- 
ney's lien may be enforced by issuing execution against them.* 

When a judgment is nullified on a review, tbe attorney's lien 
for costs on such judgment is lost. 8 

196. While a suit ia ponding on a writ of error in the Su- 
preme Court of the United States, the court will not prevent 
the parties from agreeing to dismiss the case, though in the court 
below there was a judgment for costs and the attorney claims a 
lien upon the judgment. To permit the attorney to control the 
proceedings, say the court, would, in effect, be compelling the 
client to carry on tbe litigation at his own expense, simply for 
the contingent benefit of the attorney. 7 

1 Hooper e. Welch, 43 Tt. 169, S Am. * Commercial Telegram Co. r. Smith, 
fcep. 207. 10 N. Y. Supp. 433, 33 N. Y. St Rep. 

* Young p. Dearborn, 37 N. H. 321. 44S. • 
1 Cooky v. Patterson, 5! He. 47!. 

* Gammon v. Chandler, 30 He. US, 

130 



jipismb, Google 



NO LIEN UNTIL JUDGMENT HAS BEEN ENTERED. [§§ 196, 197. 

193. Therefore, until a Judgment is entered, the client may 
settle or compromise the suit in an; manner that he may 
think to be for liia interest, without consulting his attorney ; and 
the attorney has no right to interfere or power to prevent such 
settlement or compromise. 1 If, after such settlement, the attor- 
ney proceeds to enforce judgment, this will be set aside as 
irregular. 8 

Under statutes which give an attorney a lien upon the judg- 
ment and execution for his fees and disbursements in obtaining 
the same, he has no lien before judgment, for the lien is one 
that is expressly created upon the judgment and execution. 
Before judgment the client may settle the action and discharge 
the debtor without the consent of the attorney; 8 or the client 
may at any time before the entry of jndgment assign his interest 
in the cause of action and thus defeat the lien of the attorney. 4 

197. An notion for unliquidated damages may always be 
settled by the parties, against the assent of the attorney, in the 
absence of a statute protecting him from the beginning of the 
litigation. 6 Thus, where a person having a claim against a rail- 
road company, for damages resulting from negligence, agreed 
with an attorney that he should have half the amount that might 

1 Chapman o. Haw, I Tannt 341 ; Nel- Pr. N. S. M4 ; Conghlin v. N. T. Cent. ft 

•on t>. Wilson, 6 Bing. 968; Clark v. Hud. Riv. R. R. Co. 71 N. Y. 443, 37 Am, 

Smith, G M. ft G. 1051 ; Francis v. Webb, Rep. 75 ; Pultor v. Harris, 93 N. T. 73 ; 

7 C. B. 731 ; Bfunadon e. Allnrd, S E. ft Wright e. Wright, 70 N. Y. 96 ; Robert* 

E. 17; Emma Silver Mining Co. (lim- u. Doty, 31 Hun, 188; Reynolds p. Port 

ited) p. Emma Silver Mining Co. 13 Fed. JervU Boot ft Shoe Factory, 33 Hun, 64 ; 

Rep. 81 5 ; Peterson v. Watson, 1 Blatchf. Ebcrtaardt e. Schuster, 10 Abb. S. C. 374, 

ft II. +S7; BrookscSnclU Sprsgue.+B; 391, note; otherwise since 1879. 

Parcell e. Lincoln, 1 Spragne,930; Getch- * McDowell v. Second Ar. R. R. Co. 

ell v. Clark, 5 Mass. 309; Simmons d. 4 Botnr. 670; Pinder v. Mortis, S Caines, 

Almj, 103 Mats. 33; Grant v. Hauttlne, 169. See, however, Rasquin v. Knicker- 

3 H. H. Ml ; Young e. Dearborn, 37 N. booker Stage Co. 91 How. Pr. 393. 

H.3S4; Lament v. Railroad Co. 3 Mack. » Simmons p. Alray, 103 Mass. 33; 

SO*, 47 Am. Rep. 368 ; Foote t. Tewks- Getcbell e. Clark, 9 Mass. 309 ; Conghlin 

borj, a Vt. 97 ; Hutchinson c. Pet tea, 18 ». N. Y. Cent, ft Hnd. Kir. R. R. Co. 71 

Vt. 614 ; Tillman o. Reynolds, 48 Ala. N. Y. 443, 37 Am. Rep. 79 ; HawkiM v. 

3(5 ; Parker n. Blighton, 33 Mich. 366 ; Loylesi, ,19 Ga. 9. 

Swaoatoti v. Morning Star Mining Co. 4 * Potter v. Majo, 3 Me. 34, 14 Am. 

McCrary, 2+1, 13 Fed. Rep. 315; Wood Dec. 311. 

e. Anders, 5 Bnah, 601 ; Connor v. Boyd, * Kueterer t>. Beater Dam, 56 Wit. 471, 

<3 Ala. 389. xTewYork: Power ». Kent, 14 N. W. Hep. 617; Kaunas. Island Coal 

I Cow. 172 ; McDowell i*. Second At. R. Co. (Ind .) 31 N. E. Rep. 846 ; Courtney v. 

R.Ca. 4 Boaw. 670 ; Shauk v. Shoemaker, McGavock, 23 Wis. 633. 

18 M. Y. 489; Wade e. Orton, 13 Abb. 

181 



y, Google 



§ 198.] attorney's special lies. 

be recovered for bis services in prosecuting the suit, and while 
the suit was pending settled with the defendant and gave a 
release, it was held that the release was a bar to the farther 
prosecution of the action, though the defendant bad notice of 
the attorney's interest in the claim. 1 If the attorney has omitted 
to protect himself by giving notice of his lien, and the parties 
compromise before judgment, and with notice of snob settlement 
he proceeds with the suit for his costs, be must show that the 
adverse party made the settlement collusively, with the design 
of defeating the attorney's demand for his costs or fees ; and 
failing to show this, his proceedings will be set aside. 1 

198. Where by statute the lien is upon the cause of action 
and attaches from the commencement of the suit, as is now the 
ease in New York, 8 Georgia, 4 and Tennessee, 6 no settlement or 
compromise can be made between the parties which will affect 
the attorney's lien, unless made with bis consent or by leave of 
court. The attorney may proceed with the action to final judg- 
ment. And, according to the practice in New York, he may do 
this without obtaining leave of court. 8 

But if the action be for unliquidated damages, such, for instance, 
as an action for personal injuries, the lien can hardly attach until 
it has been established by verdict, when it becomes for the first 
time certain and vested. Thus, in an action for damages arising 
from assault and battery, the plaintiff will be allowed to discon- 
tinue the action against the objection of his attorney who insists 
that the suit shall go on, so that be may get his taxable costs in 
case a recovery is had. 7 

And so where a lien is given upon a cause of action from the 
time of giving notice of it to the adverse party, there can be no 
lien before judgment upon a cause of action for tort which, in 
case of the death of the parties or of either of them, would not 
survive. 8 

Where the attorney has a lien upon the cause of action, a 

i Congblin d. N. T. C. & Hod. Rir. E. Lewii o. Day, 10 Weekly Dig. 4»; Colter 

R. Co. 71 N. T. 4*3, 21 Am. R«p. 75. v. Greenpoint Ferry Co. 3 N. T. Civ. Fro. 

a McDonald v. Second At. R. R. Co- 146. 

iBonr.STO. ' Cabill v. Cahill,9 H. Y. Civ. Pro. 

* S IBS. 341 ; Wade v. Orton, 13 Abb. Pr. N. S. 

* S 173. 444. 

* § 190. * Abbott ». Abbott, IS Neb. 503, IS N. 

* Fortaman v. Schult.ing, 33 Han, 304 ; W. B«p. 361. 

132 



3igitiz eC by GOOgle 



NO LIEN UNTIL JUDGMENT HAS BEEN ENTERED. [§§ 199-201. 

settlement, made in good faith by the parties will not be set aside 
at the instance of the plaintiff's attorney, where it appears that 
the sum agreed to be paid to his client exceeds the amount 
necessary to satisfy his lien, and especially where the defendant 
has offered to pay this amount directly to the attorney. 1 

199. When an attorney withdraws from a case of his 
own motion before judgment, the court will impress no lien in 
his favor on any ultimate recovery, as a condition to the sub- 
stitution of other attorneys, unless a special reason is shown for 
this. 1 

200. Only the attorney who is in charge of the suit at the 
time the judgment is entered is entitled to this lien ; 3 though 
of course a former attorney may be given a lien by special agree- 
ment between him and his client. 1 Counsel employed to assist 
an attorney in the trial of a cause have no lien for their services 
upon the judgment recovered." 

Where the original attorney holds an irrevocable power of 
attorney coupled with an interest in the claim, in case a new 
attorney is substituted by motion of the party, the former attor- 
ney has rights which the court will protect. Thus the United 
States Court of Claims held in such a case that, where an attor- 
ney's fees are fixed by statute, a substitution will not be ordered 
until the original attorney's fees are ascertained and paid. Where 
the attorney's fee is contingent, the court will assure him of a lien 
upon the ultimate judgment, and secure his immediate reimburse- 
ment of the expenses that have been incurred. 8 

201. By contract this lien may be availed of by an agent not 
an attorney at law, if lie renders services of the same character as 
those rendered by an attorney at law. Thus, where one who was 
not an attorney was employed to prosecute a claim against the 
government, under a stipulation that he should receive for his 
services one half of the amount that might be recovered, and he 

1 U re Tuttlo, 31 Weekly Dig. 928. * Carver v. United States, 7 Ct. Ct. 499. 

* Hektograph Co. it. Four], 11 Fed. In this cue it was ordered that the ori- 
Bep. 8-14. ginnl niloroer have and retain a lien upon 

* Wells r. Hatch, 43 N. H. 346. the cause of action, and papers and effect! 
1 /»n Wilson, 13 Fed. Rep. 335 ; Ro- of the client, and upon the judgment, for 

nald v. Mut Reserve Fund Lite Asm. 30 his contingent fees and cost*. 
Fed. Rep. 3!B. To like effect, see Supervisors of Ulster 

1 Brown ». New York, » Hun, SST, 11 County ■>. Brodhead, 44 How. Fr. 411, 44 
Bun, 11. How. Fr. 4SA. 

133 



3igitiz eC by GOOgle 



§§ 201 a, 201 b. j attobhet's special lien. 

employed attorneys and controlled the suit, and after many years 
recovered a judgment for a large aum, it was held that the plain- 
tiff was not entitled to vacate the appearance of the agent's attor- 
ney, and to substitute his own attorney, without paying to the 
agent, or his representative, one half of the amount of the judg- 
ment, in accordance with the agreement. 1 

A party to a suit prosecuted for himself, and others having a 
like interest, is entitled to a lien for his reasonable costs, counsel 
foes, charges, and expenses incurred in the proper prosecution of 
the suit, and such lien may be enforced against the trust funds 
brought under the control of the court by the suit so instituted.* 

201 a. An attorney has a lien upon a fund recovered by 
his aid paramount to the claims of persons interested in the fund 
or their creditors. 8 The lien in such case exists without the aid 
of the statute. 4 An attorney, who has rendered services in a 
partition suit, has a lien for those services upon his client's share 
of the proceeds, paramount to the claims of third persons to whom 
the client, pending the suit, assigns and mortgages his interest in 
the property as security for money owing them by him. 1 ' An 
attorney, who by bis services has procured a will to be set aside 
and established his client's right to share in the estate of the tes- 
tator, acquires an equitable lien for his fees upon the fund bo 
secured to his client, and is entitled to priority of payment over 
a judgment creditor of the latter whose lien attached after the 
contract for such professional services was entered into. 8 

201 o. The lien being upon the Judgment obtained by the 
attorney, it follows that the defendant's attorney can have no 
lien, unless a judgment for coats or in set-off is obtained. 7 There 
are, however, some decisions not consistent with this general 

1 Dodeo v. Suhell. SO Blalchf. GIT, 10 5S7 J Central R. R. Co. v. Pettus, 113 U. 

Abb. N. C. 465, 12 Fed. Rep. SIS. Wal- S. 116, S S. Ct. 387. 

lace, J., Hid ! "If theagent had been an * Puett i: Beard, 86 Ind. 172. See, also, 

attorney, the agreement and services Stratton v. Hussey, S3 Me. 286 ; Andrews 

would hare created a lien. There is no v. Morse, 1! Conn. 444, 31 Am. Dec. 

magic in the name 'attorney' which con- 7S9. 

jure, up a lien. It <■ the nature of the * Hanna » Island Coal Co. (Ind.) 31 N. 

sertlces, and the control, actual or potcn. E. Rep. 846. 

tial, which the mechanical or professional * Boyle o, Boyle, 106 N. T. 614, IS N. 

laborer has orer the object intrusted lo E. Rep. 703. 

him, whli'h determines whether a Hen it s Justice v. Justice, US Ind. 301, 16 N. 

or is not conferred." E. Rep. 613. 

3 Trustees t>. Greenongh, 105 U. B. ' § S90. 
134 



3igitiz eC by GOOgle 



HO LIEN UNTIL JUDGMENT HAS BEEN ENTERED. [§ 202. 

proposition. Thus it has been held that the attorney of bond- 
holders who have unsuccessfully resisted a suit by other bond- 
holders to foreclose the mortgage security may be allowed a lien 
upon the dividends which would go to these bonds, and that pur- 
chasers of the bonds pendente lite took subject to such lien. 1 

202. No lien exists upon a Judgment rendered in a court 
not of record for services performed in such court in obtaining 
the judgment. In such courts there are no attorneys, in the 
sense in which the term is used in courts of record; and it ia 
said to be only in respect of the office of attorney or solicitor that 
the lien exists. Besides, courts not of record possess only limited 
jurisdiction, and have no such equitable control over their judg- 
ments as will enable them to adjudicate upon and enforce liens 
thereon. 3 Therefore no lien exists for services rendered by an 
attorney in a justice's court, nor in a probate court; 8 nor was 
there such a lien for services rendered in the Surrogate's Court 
of New York, before that court was made by statute a court of 
record; 4 and whether there is since that statute seems to be a 
disputed question. 

But the attorney's lien extends to an award of arbitrators. 6 

1 Mabone c. Southern Tel. Co. 33 Fed. inquiry. They did work and labor for 
Rep. 703, TOl. Hughes, J., 'delivering the their own clients at tba special instance 
judgment said : " When the petition of and request of those clients, and are enti- 
these counsel for an allowance on: of the tied to a quantum meruit compensation 
general fund in court whji before mr, I had from some source. Primarily, it should 
no hesitation in dismissing it The labors probably come from their client* person- 
of these counsel were adverse to the par- ally, but these are residents of a distant 
posts of the suit, and wholly obstructive. State, and may not be solventoraceessible. 
They were not directed to the benefit of Petitioners prefer to look to the fund 
the fund, and did not inure to it* benefit, near at band, in this court, which has 
There was, In my opinion, no imaginable accrued from the bonds of their clients 
ground on which a claim against the fond, which they proved In the cause, and upon 
on their part, could be vested, and their which a dividend was decreed." 
petition was dismissed. The question now > Flint t. Van Dusea, 36 Hon, 60S; 
is a different one, These petitioners ren. Fox v. Jackson, 8 Barb. 395 ; Read v. 
dered various services as counsel, under Joselyn, 1 Sheld. (N. Y.) 60; Eisner v. 
■he direction and at the command of their Avery, 3 Dem. (N. Y.} 166. See In n 
immediate clients. They did their mas- Halsey, 13 Abb. N. C. 116. See, how- 
ler's bidding, at the request and for the ever, 8 SOI. 
supposed Interests of their clients. How a HcCaa ». Grant, 43 Ala. 363. 
valuable or effectual their work was to the * Flint o. Van Dusen, 36 Han, 60ft. 
general fund, or even to their especial Such a lien was said to exist in Eisner v. 
clients, is not to the point in the present Avery, 3 Dem. (N. Y.) 1GG. But in a 

6 Hutchinson v, Howard, 15 Vt. 511. See 1 113. 
135 



;y Google 



§ 208.] attobney's special lien. 

V. Settlement of the Suit by the Parties before Judgment, in 
Fraud of the Attorney. 
203. A settlement made by the parties before judgment, in 
fraud of the attorney's rights, and with the intention to cheat 
him out of his costs, would be set aside so as to allow the suit, to 
proceed for the purpose of collecting his costs. 1 Slight circum- 
stances are often regarded as competent proof of collusion, — as 
that the party has a good cause of action for a larger sum than 
that received in settlement, and is irresponsible and unable to 
satisfy his attorney's costs ; or that there is an appearance of con- 
cealment in the settlement ; and in some cases it seems to be held 

later cafe it wss held that § 66 of Che In Coughlin n. N. Y. Cent. & Hud. Rir. 

Code of Civil Procedure, as amended in 11. R. Co. Tt N. T. 443, 448, 27 Am. Rep. 

1379, does not apply to surrogates* courts, TS, Earl, J., said: "There are many cases 

bemuse in these tribunals anions are nn- where this has been allowed to be done. It 

known. The lien established under that isimpossihlctoascertainpreciBely whonthis 

clanse of the code is for service* of the practice commenced, nor how it originated, 

attorney In an action, and i> confined to nor upon what principle it was based. It 

actions for the recovery of money, or wasnotopon the principle of alien, because 

actions wherein a. demand for money is an attorney has no lien upon the cause of 

asserted by wny of counter-claim. The action, before judgment, for his cohCh; nor 

surrogates' courts have no jurisdiction to was it upon the principle that his services 

try and determine such a cause. Smith p. had produced the money paid his client 

Central Trust Co. 4 Den. 75. upon the settlement, because that could 

1 Swain v. Senate, G Boa. ft Pul. 99 ; not be known, and in fact no money may 

Cole ■>. Bennett, 6 Price, 16; Mono v. have been paid upon the settlement. So 

Cooke, 13 Price, 473; Brnnsdon v. Al- faraa I can perceive,it waabaaed upon no 

lard,2E.4E. 19. Hew York : Talcott principle. It was a mere arbitrary exer- 

0. Brunson, 4 Paige, 501 ; Tnllil v. Bush- cise of power by the courts ; not arbitrary 

nell, 65 How. Pr. 465; Rasquin v. Knfck- in the sense that it was unjust or improper, 

erbocker Stage Co. 12 Abb. Pr. 824, SI but in the sense that it wan not bssed upon 

How. Pr. 293; Sweet v. Bartlett, 4 Sandf, any right or principle recognized in other 

661 ; EKmick e. Cooler, 3 N. Y. Civ. Proc. cases. The parties being in court, and a 

Rep. 141 ; Zogbaum v. Barker, 66 Barb, suit commenced and pending, for the pur- 

341 ; Dictz v. McCellum, 44 How. Pr. pose of protecting attorneys who were 

493; Keenan v. Dorflinger, 19 How. Pr. their officers and subject to their control, 

153; Owen v. Mason, 18 How. Pr. 156; the courts invented this practice and as- 

The Victory, Blatch. & H, 443, per Beits, Burned this extraordinary power to defeat 

J. Georgia: McDonald t>. Napier, 14 attempts to uheattbeattorneysoutof their 

Ga. 89 ; Jones v. Morgan, 39 Ga. 310, 99 costs. The attorneys' fees were fixed and 

Am. Dec 453. Vermont: Hutchinson v. definite sums, easily determined by taxa- 

Pettes, 18 Vt. 614. Minhigen : Parker v. tion, and this power waa exercised to «e- 

Bliguton, 32 Mich. 266. Alabama: Ex cure them their fees." 

parte Lehman, 59 Ala. 631 ; Jackson v. Under the present Code 'of Mew York, 

Clopton, 66 Ala. 29; Mosely v. Norman, the attorney baa complete protection from 

74 Ala. 421. the beginning of the action. § 1U. 
136 



3igitiz eC by GOOgle 



SETTLEMENT OP SUIT BEFORE JUDGMENT. [§ 204. 

that, a settlement or compromise of a good cause of action without 
the consent of the attorney is ineffectual to deprive the attorney 
of his lien, though there is no other evidence of any intention to 
deprive the attorney of hie lien. 1 But generally, auspicious circum- 
stances alone are not enough to authorize the court to interfere for 
the attorney's protection. There must be something to show that 
the judgment debtor fraudulently colluded with the judgment 
creditor to defeat the attorney's lien. 3 Fraud must not only be 
alleged, but proved. 8 

The mere fact that the parties to a suit make a settlement 
after verdict, but before entry of judgment and pending a stay of 
proceedings, is not conclusive that the parties acted collusively 
to defraud the attorney of his rights. Something more must be 
shown. 4 Baron Parke on this point justly said : 6 "It is quite 
competent to parties to settle actions behind the backs of the 
attorneys, for it is the clients action and not the attorney's. It 
must be shown affirmatively that the settlement was effected with 
the view of cheating the attorney of his costs." The burden of 
proving collusion or bad faith in the settlement rests with the 
attorney. 

Where a judgment is not vacated by an appeal, but is merely 
suspended, the lien attaching to it is also suspended, bnt upon 
affirmance of the judgment attaches again with full force. If the 
client compromises the judgment pending an appeal, the attorney 
may still enforce his lien." 

204. Even after judgment, if the debtor acts in collusion 
with his creditor and pays him, with the intention of cheating 
the attorney out of his lien, the debtor is not protected in mak- 
ing such payment, though he has received no actual notice of the 
lien. 7 If notice of the attorney's lien has been given to the adverse 

'Skragg* v. Hill (Ky.), 14 S. W. Rep. Wilson, S Bing. 568; Jonei v. Bonner, 9 

363. Set, however, Rowa v. Fogle, 88 Kxrh. 230; Wade v. Orion, IS Abb. Fr. 

Ktr, 105, 10 S. W. Rep. 436. N. S. 444. 

* Francis ». Webb, 7 G. B. 731 ; Clark * Jordan b. Hunt, 3 Dowl. P. C. 666. 

r. Smith, 6 H. & Q. 1051 ; Nelson v. Wil- * Covingion e. Ban, 88 Teno. 496, 11 

ton, 6 Bing. S68. 8. W. Rep. 1033. 

* Uannn r. Iiland Coal Co. (Ind.) 31 ' Heart! p. Chipman, 3 Aik. 163 ; Helf- 
N.E.Rep.84G. " Chnractoriiing a trant- tern. Mount, 17 N. J. L. 43S; Howard v. 
iction ai fraudulent doe» not make it m in Osceola, 82 Wig. 453: Rasquin v. Knicler- 
lew anleas it if ao in fact.'' Per Fox, J. booker Stage Co. 13 Abb. Fr. 334, SI 

* Wright t>. Bnrrougbet, 3 C. B. 344 ; How. Pr. 393. 
Franeit v. Webb, 1 C. B. 731; Kelfon v. 

187 



Jy Google 



§§ 204 a, 205.] attorney's special lien. 

party and the latter disregards the notice and pays the judgment, 
or compromises it with the client, such adverse party is liable to 
the attorney for the amount of his lien. 1 

A settlement of a judgment in an action for damages for a 
personal injury, effected by the defendant's attorney with the 
plaintiff, a married woman, without notice to her counsel, may 
be set aside as fraudulent and not binding, even without placing 
it upon the ground that the plaintiff's attorney has a lien for his 
fees, and that the settlement was made in fraud of his rights. 1 

But even as regards a settlement before judgment without the 
attorney's consent, the courts so far take notice of and regard 
the equitable claim of the attorney to be paid for his services in 
the case, that, wherever the party ia obliged to ask the aid of the 
court to enforce or carry into effect his settlement, the court will 
refuse its assistance if any want of good faith to the attorney be 
discovered in the transaction. 8 The fact that there was no con- 
sideration, or no adequate consideration, for the settlement and 
discharge of the suit, is evidence of bad faith. 4 

204 a. The lien doea not exist after the client has accepted 
satisfaction of his Judgment, and it doea not attach to property 
received in satisfaction of it. After an attorney had procured a 
judgment against a railroad company, all its property and fran- 
chises were sold to satisfy various liens. The client and others 
became purchasers, the company was reorganized, and stock was 
issued to the purchasers, by mutual agreement among them, in 
payment of their claims against the old company. Liens prior to 
the judgment procured by the attorney absorbed all the purchase- 
price. It was held that the attorney had no lien, by virtue of the 
judgment, on the stock which was issued to his client. 5 

206. A court of admiralty will not allow an out-door 
settlement of a suit by a seaman for wages, made without the 
concurrence of his proctor, to bar his claim for costs. Notwith- 

1 Naw Jerasy: Baraei e. Taylor, 30 N. J. L. 518; Campbell v. Terney, T N.J. L. 

J. Eq. 467; Ucister r. Mount, IT N. J. L. IBS. 

438; Bradene. Ward, 42 N.J. L. 518. In s Voell v. Kelly, 64 Wis. SOI, 25 N. W. 

thin State the attorney 'night of lien exists Hep. 536. 

only where he has received the money * Young v. Dearborn, 27 N. H. SS4. 

upon the judgment, or has arretted it in * Young v. Dearborn, 37 N. H. 324. 

transitu, or where the defendant ha* paid * Morton v. Iltllam, 89 Ky. 165, IS 8. 

■he money after receiving notice of the W. Rep. IS7 ; Whittle v , Newman, 34 Ga. 

attorney'! lien. Braden t>. Ward, 42 N. 377. 
188 



3igitiz eC by GOOgle 



SETTLEMENT OF SUIT BEFOBE JUDGMENT. [§ 205. 

standing the settlement, the court will retain the suit and allow 
the proctor to proceed for costs. 1 The coort will consider a settle- 
ment so made, unless explained, to have been made for the purpose 
of depriving the proctor of his costs. Collusion to defeat the lien 
of an attorney is at law a ground for avoiding a settlement so far 
as the attorney is concerned. But a court of admiralty proceeds 
upon a broader principle in protecting the proctor. Costs are 
treated as his distinct and exclusive right, although nominally 
granted to the party. They are, moreover, granted or denied, 
according to the merits and equities of the party in relation to the 
subject-matter of the litigation. Accordingly, where a suit for 
wages had almost reached a hearing, and the proctor had incurred 
large expenses, when the libellant made a secret settlement and 
gave a release in full, and it appeared that he had a good cause 
of action for more than the amount paid in settlement, the court 
protected the proctor, and decreed the payment of costs to him, 
notwithstanding the settlement. 3 

In suits for personal torts, settlements made by seamen in the 
absence of the proctor are allowed when deliberately made for 
a consideration not shown to be inadequate, and the proctor is 
tendered his costs. The latter will not be allowed to proceed 
with the suit merely because he objects to the settlement. 3 And 
even though the proctor is not protected in the settlement, if 
this be made in good faith, and the situation of the respondent 
was such that there was more danger of undue influence upon 
him than upon the libellant, the proctor will not be allowed to 
proceed with the suit to recover his costs.* In a suit for a tort 
the respondent is not bound to regard the costs of the libel- 
lant's proctor in the light of a lien on him or on any funds under 
his control; because no costs could exist until damages had 
been decreed against the respondent, and because a recovery in 
such a snit does not conclusively carry costs as an incident in 
admiralty. 6 

i Brig Planet, I Sprftgae.ll; Collinau. * The Victory, Blutch. & R. 418. 

Nidkcraon, 1 Bpragne, ]2fi ; Angel] v. " Brooks v. Snell, 1 Spittle, 48. 

Bennett, 1 Spragne, 85; The Victory, * Puree] I v. Lincoln, 1 Spragne, 330; 

Blitch. & II. 443; The Surah Jane, Peieraon o. Watson, BUtcb. & H. 487. 

BUtcb. & H. 40] ; Collini v. Hathaway, ' Peterson o. Watson, Bbttcb. t II. 

Olc. 176; Ship Cabot, Newb. Adra. 348; 487. 
Trust e. The Dido, 1 Haz. P«. Beg. 9 ; 
Gainst a. Travis, Abb. Adm, 297. 



* Google 



§ 206.] attorney's special lien. 

VI. Lien upon the Cause of Action by Agreement or Assignment. 

206. Unless the cause of action be assignable in its na- 
ture, the client cannot give his attorney any lien upon it 
which will prevent a settlement by the parties, even by agree- 
ment. 1 Although in such case there be a definite agreement for 
a Hen in which the amount of the fees is fixed, and the defendant 
is notified of this at the commencement of the action, the attor- 
ney can have no lien before judgment is rendered. A claim 
against a town for personal injuries caused by a defective side- 
walk is not an assignable cause of action, and, therefore, an 
agreement by the plaintiff to give his attorney for his fees half 
of the amount that lie might recover in the action creates no lien 
upon the cause of action, and does not prevent the defendant 
from making a settlement with the plaintiff and paying him a 
sum of money for a release and discontinuance of the action 
against the attorney's protest. The attorney had no vested 
interest in the claim, and no lien even for his taxable costs. 3 

Where, in an action to recover land which the plaintiff claimed 
was held under fraudulent sales and transfers, the plaintiff en- 
tered into an agreement with his attorney whereby he was to 
receive for his services a part of the property that might be 
recovered in the action, and, pending the litigation, the plaintiff 
settled with the defendant, it was held that the attorney, who 
had taken no steps to perfect a lien in accordance with the stat- 

1 Swansion d. Morning Star Mining Hud. Hi v. B. R. Co. 71 N. T. 443. !7 Am. 
Co. 13 Fed. Rep. £13, 14 Rep. SSI; Rep. 75 (reversing 8 Han, 136); Eberhardt 
Hanna v. Island Conl Co. (Ind.) 31 N. E. v. Schuster, 10 Abb. N. C. S74, 391. note; 
Rep. 846; Newell e. West, 149 Mass. 520, McBratney v. 11 W. & O. R. It. Co. 17 
21 N. E. Rep. 954. An agreement be- Hun, 385, 87 N. T. 467; Sullivan ■. 
tween an attorney at law and his client for O'Keefe, 53 How. Fr. 426; Brooks v. 
the payment of a certain sum for the Hanlbrd, 15 Abb. Pr. 342; Quincey ■>. 
former's professional services in proaecut- Francis, 6 Abb. N. C. 286 ; Pulver c. Har- 
ing Alabama claims of the client, recited ris, 52 N. T. 73 (affirming 62 Barb. 500) ; 
that the snm agreed upon "should in Wright i\ Wright, 70 N. Y. 96 (affirming 
some form be charged upon or paid out of 9 J. & S. 432). 

any sums to be recovered on the Alabama Otherwise by statute since 1879. See 
claims." It was held that there was no § IBS. 

effective assignment to the attorney of any Wisconsin : Voell v. Kelly, 25 N. W. 
right in those claims, and thai, even if Rep. 536, per Cole, C. J. ; Knsierer v. 
there were, the United States statute (R. Beaver Dam, 56 Wis. 471, 43 Am. Rep. 
S. 5 3477) would render the assignment 725, 14 N. W. Rep. 617. 
void. > Kuaterer it. Beaver Dam, 56 Wis. 

New York: Coughlin e. N. T. Cent. & 471,43 Am. Rep. 725,14 H. W. Rep. 617. 
140 



3igitiz eC by GOOgle 



LIEN UPON THE CACSE OP ACTION. [§§ 207, 208. 

ate, could not intervene to continue the suit by virtue of the con- 
tract 1 

207. An action for slander or libel, or for assault and bat- 
tery, is not assignable ; and the attorney can have no lien on 
the cause of action before judgment. Though the client prom- 
ised the attorney before the suit was begun that he should re- 
ceive for his services the damages that might be recovered, the 
client may discontinue the suit at any time before judgment with- 
out the attorney's consent. 3 Even under the new Code of New 
York, the attorney's lien does not attach so as to prevent a dis- 
continuance of the action without costs when the plaintiff has 
forgiven the defendant, and the parties want the further prosecu- 
tion of the action stopped. 8 Whenever the cause of action is for 
tort, and would not survive the death of either of the parties, the 
attorney is not entitled to a lien upon it. 1 

In like manner a cause of action for personal injuries, incurred 
through the negligence of a person or corporation, is not assign- 
able in its nature, and does not survive a settlement by the parties 
before judgment without consent of the attorney. 6 

208. Where, however, the action is founded upon a ne- 
gotiable instrument, or a contract in writing, which is in the 
attorney's possession, his lien attaches to the contract before 
judgment, and his client can make no settlement or assignment 
of the action without discharging his attorney's fees. 8 The lien 
in Bucb case attaches from the time the contract is delivered to 
the attorney and he commences the action. In such case the 
lien attaches not only for his attorney's services rendered in that 
suit, but also for his general account for professional services ren- 
dered the client. The settlement or assignment is subject to the 
attorney's general lien. 7 In such case, also, the rule that a bond 

1 Lavender v . Atkins. 90 Neb. SOS, 99 * Knalerer v. Bearer Dam, 36 Wis. 

S. W. Rep. 467. 471, 14 N. W. Rep. 617, 43 Am. Rep. 

1 Quince; f.Ftancu.S Abb. N.C.SS6; 715. 

Miller v. Newell, 20 a C. 123, 47 Am. Rep. • Congblin v. S. T. Cent. & Hud. Riv. 

833; Cab.il J v. CahilL 9 K. Y. Civ. Pro. R. R. Co. 71 N. T. 443, 449, per Earl, J., 

941 ; Hanna u. Island Coal Co. (Ind.J 31 27 Am. Rep. 75 ; Courtney v. HcGarOck, 

N. E. Rep. 846. 23 WU. 619, 622 ; Kuaterer v. Beaver 

K«v York : reiver p. Harris, 62 Barb. Dam, 56 Wis. 471, 43 Am. Rep. 725, 14 

M0, affirmed 52 N. T. 73. N. W. Rep. 617 ; Howard e. Osceola, 

* Cabill p. Cahill, 9 Civ. Pro. 941. 29 Wis. 453; Dennett n. Culls, 11 N. H. 

• Abbott v. Abbott, 18 Neb. 503, 96 N. 163. 

W. Rep. 361. ' Schwartz it. Schwarts, 21 Hun, 33. 

141 



, b y Google 



§ 209.] ' attobney's SPECIAL lien. 

fide settlement, payment, or assignment of the cause of action 
made before judgment, without notice of the attorney's lien, pre- 
vails against the lien, has no application ; neither has the rule 
that the attorney's lien upon a judgment yields to the right of set- 
off of the opposite party. 1 

The attorney may be in effect an assignee of the judgment by 
virtue of the law that gives hint a lien upon it, so that his lien 
wilt be effectual, though he does not hold the contracts upon 
which the judgment ia based. Thus, in a suit against a corpo- 
ration to enforce payment of debts, if the attorney succeeds in 
bringing a fund under the control of the court for the common 
benefit of a class of creditors, he is entitled to reasonable costs 
and counsel fees out of the fund, both as regards the claim of the 
complainants who employed him, and as regards other creditors 
who come in and secure the benefit of the proceedings. If after 
decree and pending the proof of claims, the corporation buys up 
all the claims, the attorney's lien upon the fund is not defeated, 3 
provided the law of the State where the suit was pending entitles 
the attorney to a lien upon the decree, in such manner that he is 
regarded as an assignee of the decree to the extent of liia fees. 
The right of the attorney in such case is superior to any which 
the defendant corporation could acquire subsequent to the decree, 
by the purchase of the claims of the creditors. 8 

VII. When the Attorney ia required to give Notice of his Lien to 
the Judgment Debtor. 
209. 'Where the Judgment is for damages as well as for 
coats, the attorney should give notice of his lieu to the judg- 
ment debtor ; otherwise he will not be protected against a settle- 
ment of the judgment with bis client. 1 But the notice affords 

1 Schwarti u. Schwartz, 21 Hon, S3. How. Pr. 54; Owen n. Mason, IB How. 

1 TrusiefB v. Greenough, 109 U. S. 527 ; Pr. 1 56 ; Ackerman u. Ackerman, 14 Abb. 

Central Railroad e. Pettus, 113 U. S. Pr. 839; Bishop v. Garcia, 14 Abb. Pr. 

116. (N.S.)69,72; Le.ber b. Hoessner.S Hun, 

' Central Railroad «. Petto*, 113 U. S. 317 ; Martin v. Hawks, 15 Johns. 406; 

116. St. John v. lliefendorf, 13 Wend. 961 ; 

• Welsh v. Hole, 1 Dong. 238, per Lord Carpenter v. Sixth At. R. R. Co. 1 Am. 

Mansfield ; Read e. Dapper, 6 T. R. 361 ; L. Keg, f N. S.) 410 ; Nrcoll v. Nicoll, 16 

Mitchell e. Oldfleld, 4 T. R. 133. Wend. 446 ; Pinder t>. Morris, 3 Caines, 

New York: PulYer e. Harrii, OS N. T. 16S; Power b. Kent, 1 Cow. 103; Ten 

73 ; Manhall v. Meech, 51 N. Y. 140, 10 Broeck v. De Witt, 10 Wend. 617 { Pearl 

Am. Rap, 57S; Crottv r. Mackenxie, G3 v. Bobftcbek, 3 Daly, 138. 
142 



3igitiz eC by GOOgle 



WHEN ATTORNEY 18 REQUIRED TO OIVE NOTICE. [§ 210. 

anch protection, so that, if the debtor afterwards pays tbe judg- 
ment, he does so in his own wrong ; for the attorney may proceed 
with the execution against the debtor, and enforce payment of it 
to the extent of hie fees and disbursements. 1 The circumstance 
that a dispnte may exist concerning the amonnt of his compensa- 
tion or bis right to remuneration will not defeat the proceeding; 
for the court is empowered through the intervention of a refer- 
ence to determine tbe validity of his claim, as well as of tbe objec- 
tions which may be made against it by either of tbe parties to the 
judgment or others. 3 

210. In several States there are statutory provisions in 
regard to giving notice of the lien. Thus in Georgia the lien 
continues if the attorney files a claim of lien upon the property 
recovered within thirty days after the recovery. In Indiana tbe 
attorney has a lien on the judgment if he enters in writing upon 
the docket or records, at the time such judgment is rendered, his in- 
tention to claim a lien. In Iowa and North and South Dakota the 
lien attaches during tbe pendency of the suit, if the attorney gives 
notice of his claim to tbe adverse party. It attaches from the 
time of such notice. After judgment the notice may be given 
by entry in the judgment docket. In Kansas, also, the lien exists 
from the time of giving notice of the lien to the adverse party. 

Georgia, : Gray v. Luwson, 36 Ga. 629 ; lion, procures * decree Tor alimony, coda, 

Hawkins v. Lojlets, 39 Oa, 9. and attorneys' feel, and the defendant, 

Vermont: Htarit v. Chipman, 3 Aik. though verbally advised of* lien of pl«iu- 

163 ; Hooper v. Welch, 43 Vt. 169, & Am. tiff's attorneys on the judgment, secretly 

Rep. 267. procures plaintiff to execute a satisfaction 

T ls sona lu . ; Courtney n. McGavock, 33 of (be decree, the satisfaction will be set 

Wis. 619 ; Toell e. Kelly, 64 Wis. 604, 36 aside (or the protection of plaimifFs at- 

N. W. Iiep. 636, per Cole, C. J. torneya, even after Che death of plaintiff. 

Other Stat**: Andrews v. Morse, 19 The conduct of the defendant in obtain - 

Conn. 444, 31 An. Dee. 739 ; Barnes v. ing the satisfaction piece had the effect of 

Taylor, 30 N. J. Eq. 467 ; Young n. Dear- substituting the attornejs of the plaintiff, 

born, 27 N. H. 824 ; Boston & Colorado the plaintiffs herein, thus to enable them 

Smelting' Co. v. Fleas, 8 Colo. 87, 10 Pac to carry on the case by the appropriate 

Bep. 659. remedies until their lien is paid, or the 

1 Commercial Telegram Co. v. Bmilh, modes of procedure for collection ex- 

10 N. Y. Supp. 433, 32 N.Y.St. Rep. 445; haunted. Branth v. Braoth, 10 N. Y. Supp. 

Marshall v. Heecb, SI N. Y. 140 ; Good- 638, 33 N. Y. St. Rep. 979 ; Lachenmejer 

rich v. McDonald, 113 N. Y. 157, 19 N. e. Lachenmeyer, 65 How. Pr. 493. 
E. Rep. 649 ; Randall o. Van Wagenen, Few Jersey ; Bradcn a. Ward, 49 N. J. 

119 N- Y. SS7, 93 N. E. Rep. 361 ; Wright L. 518. 

v. Wright, 70 N. Y. 98 ; In re Wolf, 4 N. * Commercial Telegram Co. v. Smith, 

Y. Snpp. 239, SI N. Y. St. Rep. 334. 10 N. Y. Supp. 433, 33 N. Y. St, Sep. 

Wfaen a wife, in an action for septra- 449. 

148 



, Google 



§ 211.] attorney's special lien. 

In Minnesota and Oregon the lien exists from the time of giving 
notice of the lien to the adverse party. After judgment the lien 
exists in Minnesota from the time of giving notice to the judg- 
ment debtor ; and in Oregon from the time of filing notice with 
the clerk where the judgment is entered. In Montana the lien 
attaches from the commencement of the suit ; but after judgment, 
notice must be Sled within three days in the office of the clerk in 
which the judgment is obtained. In Nebraska and Wyoming, if 
any lien exists, it is from the time of filing notice of it with the 
adverse party. 

In New York, under the present code, the lien exists from the 
commencement of the suit, and no notice of the lien need be 
given.' But notice of the lien is necessary where no lien is ex- 
pressly given by statute. 3 In Tennessee, also, the lien dates 
from the commencement of the suit, the pending of which is of 
itself notice of the lien. 

Where by statute the lien exista from the time of giving notice 
of it, the parties, acting in good faith, may make a valid settle- 
ment at any time before the notice is given, in the manner pre- 
scribed. 8 

211. The notioe should be given to the adverse party per- 
sonally, and not to his attorney. It would be inequitable to 
require a party to pay a judgment, or any part of it, a second 
time, when it ttppears that be has never received notice of any 
lien upon it, though such notice may have been given to bis 
attorney.* 

But notice to the attorney of record, or to the attorney in fact, 
may often be sufficient. 5 Where, however, one member of a law 
firm in a particular matter is individually the attorney of the 
party, and the other members have nothing to do with the case, 
a notice of an attorney's lien served upon either of the other mem- 

1 Coster i\ Grtcnpoinl Ferry Co. 5 Civ. * Cnaar v. Sargeaiit, 7 Iowa, 317 ; Haw- 

Fro. 146; Dimick v. Cooley, 3 Civ. Pro. kinao. Lovleaa,39 Ga. 9; Green c. Sou th- 

141 : Kehoe t>. Milter, 10 Abb. N. C. 333 ; em Express Co. 39 Ga, SO. 

Tnllfa v. Bushnell, 63 How. Pr. 465 ; Al- « Wright s. Wright, 7 Daly, 68, 70 H. 

tort Palmer Co. v. Van Orden, 64 How. Y. 96. 

Pr. 79,4 Cir. Pro. 44. See, however, Jen- * Kanaka Pac. Ry. Co. v. Thacber, 17 

kins u. Adama, S3 Hun, 600. Kans. 92. 

a Lablache v. Kirkpairick, 8 N. T. Cfv. 
Pro. Rep. 25B. 

144 



3igitiz eC by GOOgle 



WHEN ATTORNEY IS BEQUIBED TO GIVE NOTICE. [§§ 212-214. 

bers of the firm is not notice to the attorney actually engaged in 
the case, ao as to bind him or his client. 1 

The placing of a paper upon the files of the court in which the 
judgment was rendered is not notice to the judgment debtor, in 
the absence of a statute making it bo. -If, without knowledge of 
luch paper or other notice of the attorney's lien upon the judg- 
ment the debtor makes a bond fide settlement of the judgment 
with the creditor, by payment or otherwise, the attorney cannot 
look to the debtor for his unpaid fees. 3 

212. But actual notice of the attorney's claim to a lien is 
not in all oases necessary for the protection of his rights. If 
the judgment debtor acts in the face of circumstances which are 
sufficient to put him upon inquiry, he acts contrary to good faith, 
and at his peril ; and a discharge of the judgment under such cir- 
cumstances is, as to the attorney, void in the same manner as it 
would be after an actual notice of his claim to a lien. 3 But the 
mere fact that the attorney appears in a cause is not sufficient 
notice of his lien. 1 

Where a judgment debtor settled a judgment by offsetting 
claims against his creditor and agreeing to pay the costs of the 
plaintiff's attorney, it was held that the terms of the agreement 
imparted to the debtor notice of the attorney's lien and of the 
amount of it. 6 

213. An attorney has no lien upon the damages recovered 
in a suit before the money comes into his hands, although his 
demands against his client equal or exceed the amount of judg- 
ment. He has a lien for his costs out of a judgment for damages 
and costs ; but he may lose this if be doeB not give notice to the 
judgment debtor before the latter discharges tbe judgment by 
payment to the plaintiff.* 

214. When the Judgment is for costs only, this is of itself 
a legal notice of the lien, which can be discharged only by pay- 

1 8t Louis & San Francisco Hy. Co. v. 581, 48 Am. Rep. 831 ; Lske v. Ingham, 
Bennett, 35 Kane. 395, II Pk. Rep. 159. 3 Vt. 158; Hooper v. Welch, 43 Vt. 169, 

* Boston £ Colo. Smelting Co. o. Flew, S Am. Rep. 367, per Wilson, J. 

8 Colo. 87, 10 Pac. Rep. 652; Wright v. He* York: Wilki.is n. Ba Herman, 4 

Wright, 7 Dal;, 62, 70 N. Y. 96, Barb. 47 ; Martin v. Hawks, 15 Johmj. 

* Abel r. Poiu, 3 Eap. Cw. 243; Car- 409; Tea Broeck e. Do Witt, 10 Wend, 
tier r. Boston & Me. R. R. Co. 37 N. H. 617. 

123 ; Yonng v. Dearborn, 37 N. H. 334 ; * Gray t>. Lnwaon, 36 Ga. 619. 

Sexton t>. Pike, IS Ark. 193. * Hall e, Ajer, 19 How. Fr. 91. 

Yantost: Weed n. Bontelle, 56 Vt.870, * 6t John e. Diefendorf, 13 Wend. HI. 
vol. i. 10 145 



:M by Google 



5 215.] attobhet's special lien. 

ment to the attorney. 1 Tbe judgment debtor pays such a judg- 
ment, to tbe creditor at bis peril. His payment is equivalent to 
paying tbe assignor a debt wbicb has been assigned after notice 
of the assignment. 

Where a judgment was recovered (or six cents damage and 
costs, and tbe plaintiff's attorney gave notice of bis lien, and the 
sheriff: to whom the execution was committed arrested the de- 
fendant, and afterwards voluntarily permitted his escape, tbe 
attorney was allowed to sue the sheriff in the name of his cli- 
ent; and tbe sheriff was not allowed to avail himself of a release 
afterwards obtained from the client, for this was a fraud upon the 
attorney. 8 

VIII. Whether the Attorney'* Lien is subject to a Right of Set-off 
in the Judgment Debtor. 
216. The rule in the Court of the King's Bench was that no 
set-off should be allowed to the prejudice of the attorney's lien 
for his costs. 3 The Courts of Common Fleas, however, did not 
follow the King's Bench in this practice, bnt allowed a set-off in 
all such cases, upon tbe ground that tbe lien of the attorney was 
subject to, and must give way to, the equitable rights of the 
parties. 4 The two courts thus stood in conflict until the adoption 

1 Saw York : Marshal v. Meech, 51 N.Y, uej of hia claim of a lien. And in the 

140, 10 Am. Rep. 572; McGregor d. Com- recent case of Horton v. Champ) in, IS 

ftock, 28 N. Y. 337, 340 ; Wilkina v. Bat- R. L S50, 3* Am. Bop. 732, it was held 

terman, 4 Barb. 48 ; Haigbt v. Holcomb, tbat an attorney who had obtained a judg 

16 How. Pr. 173; Lasher v. Roessner, 3 ment (or hit client for coats only bad 

Han, 217 ; Baylor v. Lane, 66 How. Pr. no authority to bring a suit on the judg- 

400; Martin v. Hawks, 19 Johns. 405; mem without bis client's consent and di- 

Kipp t>. Rapp, 7 Civ. Pro. 385; Enoia v. ration. 

Carrie, 3 Month. L. Bui. 66. ' Martin e. Hawks, 16 Johna. 405. 

Mains t Hobaon v. Watson, 34 Me, 30, * Mitchell b. Oldfield, 4 T. R. 123 

56 Am. Dec. 638; Newbert t>. Cunning- (1791};Handleu. Fuller,6 T.R.456,457; 

bam, 50 Me. 231, 79 Am. Dec 612; Smith ». Brockleaby, 1 Ansir. 61; Mid- 

McKemie v. Wardwell, 61 Me. 136; dleton v. Hill, 1 M.& S. 240; Stephens 

Stratton v. Hussey, 63 Me. 286. c. Weston, 3 B. & C. 535 ; Holroyd u. 

There are a few decisions that are incon- Breare, 4 B. 4 A. 43 ; Simpson v. Lamb, 

sis tent with the view that a judgment for 7 E. & B. 84. 

costs or.lv belongs absolutely to the attor- ' Schools, v. Noble, 1 H. Bl. 23 ; 

ney. Thus in People t>. Hardeubergh, 8 Vanghnn v. Davie*, 2 H. Bl. 440 ; George 

Johns. 335, it waa held that such ajudg- v. Elaron, 1 Scott, 518; Emdiu o. Darley, 

ment might bo settled between the parties, 4 B. & P. S3. 

if the debtor aetsin good faith and without In Hell v. Ody, a B. s> P. 28, before tbe 

notice from the jndgment creditor's attor- Common Plea* of England, in which the 

146 



jipismb, Google 



WHETHER SUBJECT TO BIGHT OP SET-OFF. [§ 216. 

of the new roles in 1858, 1 when tbe role of the King's Bench 
was made applicable to all the courts. Now, however, under 
the Judicature Acts of 1873, it seems that the equitable rule 
prevails. 1 

216. In equity it seems to have heen long established that a 
solicitor's lien is not to interfere with the equities between tbe 
parties. In a case before Lord Langdale, M. R., in 1838,* it was 
held that a solicitor's lien upon a balance due to his client could 
not extend beyond tbe amount of tbe true balance as ultimately 
ascertained, and that the court would not allow the lien to inter- 
fere with the equities between the parties. As before remarked, 
tbe rule in equity seems now to have become the rule of all the 
courts since tbe Judicature Act. 4 

But even in equity a judgment for costs alone is not subject 
to set-off by another judgment for costs in a different matter so 
as to interfere with the attorney's lien for his costs." Thus, if a 
plaintiff in an action obtains a judgment for costs against the 
defendant, and in a different matter he becomes liable to pay 
costs to the defendant, neither the plaintiff nor the defendant 
can have the costs set off to the detriment of the attorney hav- 
ing a lien for his costs. But if the judgments for costs have 
been rendered in the same matter, they may be set off. Tbe 
principle is declared to be that, where a solicitor is employed in 
a suit or action, he must be considered as having adopted the 
proceeding from the beginning to the end, and acted for better 
or worse. His client may obtain costs in some matters in the 
suit or action and not in others, and the solicitor takes his chance 

lien was declared to be subject to set-off, hid no right to claim the advantages of a 

Lord El Jon, then recently appointed chief more just principle. 

justice of that court, expressed his snr- ' General Kules of Hilary Term, 1859, 

prise that by the settled practice of that Rule S3. 

court the attorney, by whose diligence the ■ j B4. 

fund had been recovered, was not entf- * Bawtree v. Watson, 9 Keen, 713. 

tied to take his corta oat of it, in prefer- See, also, Catiell v. Simons, 6 Bear. 304 ; 

ence to tha tight of the opposite party to Verily o. Wylde, 4 Drew. 497 ; Roberta ». 

tbe Ber-orT; »nd emphatically declared Bnee, L. R. 8 Ch. D. 198. 

that it was in direct contradiction to the * Mercer v. Graves, L. It. 7 Q. B. 499; 

practice of everj other court, as well as to Brandan v. Allard, 3 E. * E. 17. 

the principles of justice; and he acqnl- * Roberts o. Bote, L. R. 8 Ch. D. 198; 

esceri in the decision in that cats only be- Cattell v. Simons, 6 Bear. 304 ; Collett b. 

cause the attorney who claimed the lien Preston, 15 Bcav. 458. Explained, bow. 

had acted with the knowledge of the set- ever, in Roberts o. Bnee, L. R. 8 Ch. D. 

tied practice* of that conn, and therefore 198. 

147 



, Google 



§ 217.] ATTORNEY'S SPECIAL LIES. 

and may ultimately enforce his Hen for any balance which may 
appear to be in favor of his client. 1 

217. In this country the rule of the Court of Common 
Pleas in England has been followed in the greater number of 
States. The lien of an attorney upon a judgment is upon the 
interest of his client in the judgment, and is subject to an exist- 
ing right of set-off in the other party to the suit. 2 In other 
words, an attorney can have a lien for an amount no greater 
than what is actually found to be owing by the opposite party 
to bis client. It is subject to the equitable claims of the parties 

1 Roberta v. Bues, T.. R. 8 Ch. D. 19B, for costs was refused Id Smith s. Lowden, 

per Ball, V. C. 1 Snndf. 696 ; Gition t>. First, a Ssndf. 

* National Bank v. Eyre, 3 McCrary, 636; Purchase e. Bellows, 16Abb.Pt. 105. 

ITS, 8 Fed. Hep. 733 ; Shirts t>. Irons, 54 Since the passage of the act of 1879, 

Ind. 13 ; Renick ». Ludington, 16 W. Tit. § 66, no set-off is allowed as against the 

378. attorney's lien. Naylor t>. Lane, 66 How. 

Coiuiecticnt : Gager b. Watson, 1 J Colin, pr. 400, IB J. & S. 97; Ennis v. Curry, 

168; Rnmrill v. Huntington, B Day, 163; 33 Hnn, 584, 61 How. Pr. 1; Hovcy v. 

Andrews o. Morse, IS Conn. 444, 31 Am. Rubber Tip Pencil Co. 14 Abb. Pr. (N. S.) 

Dec.752; Benjamin v. BsnjainiD, 17 Conn. 66. See § 186. 

110. Iowa; Burst v. Sheets, SI Iowa, 501 ; 

Kansas: Turner tt. Crawford, 14 Kane. Tiffany v. Stewart, 60 Iowa, 2 07, UN. 

499, 500, overruling Leavenson t>. Lsion- W. Rep. 320 ; Watson f. Smith, 63 Iowa, 

taine, 3 Kanj. 533. 238, 18 N. W. Rep. 916. 

Maw York: Mohawk Bank tt. Burrows, Alabama: Muaely ». Norman, 74 Ala. 

6 Johns. Ch. 817 ; Porter e. Lane, 8 Johns. 423; Ex parte Lehman, 59 Ala. 631. The 

367; Nicoll p, Nicoll, 16 Wend. 446; Feo- statute gives a legal right to net off one 

plee.N.Y. Com. Pleas, 13 Wend. 649, 28 judgment against another. Code 1876, 

Am. Dec. 495 ; Cragin v. Travis, 1 How. § 3993. 

Pr. 157; Nixon e. Gregory, 5 Bow. Pr. South Dakota : l'iiie r. Harkne=n (S. D.), 

339; Brooks it. Banford, l5Abb.Fr. 343; 52 N. W. Rep. 581. See §1886. 

Hayden it. McDermott, 9 Abb. Pr. 14; Texas: Wright it. Tread well, 1* Tex. 

Martin it. Kanouie, 1*7 How. Pr. 146 ; Da- 355 ; Fitzbugh it. McKinney, 43 Fed. Rep. 

vidton u. Alfaro, 1 6 Hon, 353 ; Sanders v. 461. 

Qillett, B Daly, 183. Maryland: Levy o. Steiubach, 43 Md. 

The practice in New York has been to 312 ; Marshall v. Cooper, 43 Mil. 46. 

allow the set-off since Porter v. Lane, 8 Vermont : McDonald v. Smith, 57 Vt 

Johns. 357, was decided, in 1811. In some 602; Walker it. Sargeant, 14 Vt 347; 

earlier cases, as in Devoy e. Boyer, 3 Johns. Hooper e. Welch, 43 Vt 169, per Wilson, 

347, and Colo e. Grant, 3 Caines, 105, the J.; Fairbanks v. Devereaux, 58 Vt 359, 3 

lien of tbe attorney for his costs waa not Atl. Rep. 500. 

allowed to be affected by tbe set-off. In Wisconsin : Bosworth it. Tellmaji, 66 

equity the doctrine of these cases was fol- Wis. 533, 39 N. W. Rep. 542 ; Yorton v. 

lowed at a later da; in Dankin c. Van- Milwaukee, Lake Shore & W. Ry. Co, 

danbergh, 1 Paige, 632, and Grfdlej v. 62 Wis. 367, 31 N. W. Rep. 616; Gano ». 

Garrison, 4 Paige, 647. Chicago & N. W. Ry. Co. 60 Wis. 13, 

A setoff aa against the attorney's lien 17 N. W. Rep. 15. 
148 



3igitiz eC by GOOgle 



WHETHER SUBJECT TO RIGHT OF SET-OFF. [§§ 218-220. 

in the cause, as well as to the rights of third parties, which can- 
not be varied or affected by it. 

218. When a defendant has a right by statute to set off a 
Judgment in his favor against a judgment against him, the 
court, in order to protect the attorney's coats, will not interfere. 1 
An attorney's lien upon a payment is not equivalent to an equi- 
table assignment to him of the judgment debt, 2 or to an equitable 
interest in the proceeds of the judgment. The protection the 
courts afford to the attorney stops very far short of putting him 
in the position of cestui que trust to his client, so as to compel the 
client to act as his trustee in collecting the judgment. 3 The at- 
torney cannot maintain a bill in equity in such a case against a 
judgment debtor to restrain him from exercising his own legal 
rights under a statute allowing a get-off.* 

219. When set-off good against the attorney's lien. — But 
when the set-off is one which would have been a good defence 
to the action wherein the judgment was recovered, the judgment 
debtor has a right of set-off against the attorney's lien." 

It is clear that a set-off acquired after the judgment should 
not be allowed to prevail against the attorney's lien. c 

220. In other States, however, the rule of the King's 
Bench is followed, 7 and it is held that an attorney's lien upon 

1 Mercer v. Grave*, L. R. 7 Q. B. 499 ; * Mercer v. Grates, L. R. 7 Q. B. 499, 

Brunsdon v. Allan], 2 E. & E. 17; Ex per Blackburn, J. 

parte Lehman, 59 Ala. 631 j Mostly v. * Mercer v. Graves, L. R. 7 Q. B. 499, 

Norman, 74 Ala. 422 ; Fairbanks t>. Dcve- per Lush, J. 

ream, 58 Vt. 359, 3 All. Rep. 500 ; Mc- ' Robertson v. Shntt, 9 Bash, 659 ; Cal- 

Donald b. Smith, 57 Vt. 502. See Walker vert v. Coxe, 1 Gill, 95 ; Carter v. Bennett, 

p. Sargeant, U Vt 247. Rojce, J., said r 6F1&.214. In Nicoll o. Sicoll, 16 Wend. 

" We recogniao nothing in this particular 446, 449, Justice Cowen said that no en- 

upecies of lien which ought, in a case like thority could be produced where the attor- 

this, to be interposed against a salutary boy's lieu was ever recognized on a trial 

provision of statute law. We think it at lair as barring a set-off, the right to 

clear tbat the lien here asserted should be which would otherwise be perfect. 

held subordinate to the defendant's right * Bradt tr. Koon, 4 Cow. 416 ; Warfleld 

of set-off." In Fairbanks t>. Devereanx, tt. Campbell, 38 Ala. 527, 62 Am. Dec. 

SB Vt. 359, 3 All. Rep. 500, Ross, J., re- 734 ; Rumrill s. Huntington, 5 Day, 163 ; 

ferring to that decision, said : " The prin- Ward v. Watson, 27 Neb. 766, 44 N. W. 

ciples then announced have remained the Rep. 37. 

unquestioned law of the subject from lbs 7 Hew Hampshire : Shapleyc. Bellows, 

lime of its rendition in 1842 to the pret- 4 N. U. 347 ; Currier u. Boston & Me, R. 

ens lime." R. 37 N. H. 223. 

1 Bransdon V. Allard, 3 E. * R, 17, pel Maine: Stratum «. Huasej,62 Me. 386; 
Campbell, C. J., Erie and Cromptou, J J. Hooper v. Brundage, 23 Mb. 460. 
149 



* Google 



§ 221.] attorney's special lien. 

a judgment for his coats is not subject to a right of set-off in the 
adverse party ; and when by statute he is given a right of lien 
for his fees, the same rule applies. His lien for costs is para- 
mount to the right of the debtor to set off a judgment he holds 
against the judgment creditor. So strong is the equity of the 
attorney to claim and maintain his lien, that even a statute which 
requires the officer to set off executions held by the parties 
against each other is construed as containing an implied condi- 
tion that this should not be done in derogation of the attorney's 
right to claim the judgment as his own, by way of a lien upon it, 
to the extent of his costs. 

The right to Bet off one judgment against another, in the ab- 
sence of a statutory provision, is one of equitable discretion, and 
will not be allowed where the just rights of another party, such 
as an assignee, would be disturbed ; and the court will not allow 
such a set-off to the detriment of the claim of an attorney for 
his fees in obtaining a judgment where it appears to be right 
that his claim should be respected. 1 

In Maine 3 and Michigan 8 it is provided by statute that execu- 
tions shall not be set off against each other as to so much of the 
execution as is due to the attorney in the suit for his fees and dis- 
bursements therein. 

221. Delay in objecting to a set-off allowed by court. — 
When a set-off has been allowed by order of court, the attorney 
cannot after delay interfere at a subsequent term of court. Thus, 

Hew York: Since the set of 1879, 5*6. Pro. 352. And lee Tunstall v. Winlon. 

See S IBS ; Turno v. Parks, 3 How. Pi. N. 31 Han, 119, affirmed 9S N. Y. 646 ; 

8. 35 ; Hilton v. Binsheimer, Daily Reg. Marshall d. Meech, SI N. T. MO, 10 Am. 

March. 27, 18S5; Nay lor b. Lane, 5 Civ. Rep. 673; In re Knapp, 85 N. Y. SSI; 

Pro. 149, 160, 66 How. Pr. 400 ; Davidson Turno K Parks, 3 How. Pr. N. S. 35. 

v. Alfaro, 80 N. Y. 660 ; In re Balky, 4 Indiana; Puett v. Beard, 86 Ind, 171, 

N. Y. Civ. Pro. 140, 143. Contra, Sanders 44 Am. Rep. 280; Adams v. Lee, 82 Ind. 

v. Gillett, 8 Duly, 123, 184, and Garner 587 ; Johnson v. Ballard, 44 Ind. 370. 

». Gladwin, 12 Weekly Dig. 9, 10, criticised Other States : DnrAlee v. Locke, 13 

in Tnmo t>. Parka, 2 How. Pr. N. S. 35. Mass. 535 ; Bojer v. Clark, 3 Neb. 161 ; 

An attorney has n lien on motion costs Robertson o. Shntt, 9 Bush, 659 ; Carter 
in favor of his client which attaches the r. Davis, 8 Fla. 1 83. 
instant the costs are dne. Costs arising ' Diehl v. Friester, 37 Ohio St. 473. 
upon an appeal from an order are motion ■ Her. Stat. 1883, p. 735, § 28. 
costs. Such coat* are the property of the * Annotated Stats. 1883, § 7710. And 
Attorney, and are not aobject to any off- see Wells t>. Blum, 40 Mich. 218; Kin- 
set in fsvor of the plaintiff. Place v. Hay- ney v. Robiaon, 53 Mich. 389, 39 N. W- 
ward, 3 How. Pr. N. S. 59, 8 N. Y. Cir. Rep. St. 
150 



3igitiz eC by GOOgle 



EFFECT OF ASSIGNMENT OF JUDGMENT. [§ 222. 

where judgments in two actions between the same parties were 
by order of court Bet oft against each other, the court refused, at 
a subsequent term and after the lapse of two years, to rescind 
the order upon the motion of the attorney of one of the parties, 
upon the ground that Iris lien was affected by it, for it whs then 
too late ; though the court could not have made the order had 
the objection been interposed at the time. 1 

IX. Effect of an Anignment of the Judgment to the Attorney 
or to Another. 

222. But an assignment of a judgment by the Judgment 
creditor to his attorney, in payment or seourity for his fees 
in the suit, is effectual to prevent a set-off against such Judg- 
ment of another judgment previously recovered by the judgment 
debtor against the judgment creditor. 3 If an attorney undertakes 
the defence of a suit for an insolvent client in consideration that 
the coata that might be recovered should belong to him, and he 
recovers a judgment for costs and assigns this to the attorney, a 
judgment against the defendant cannot be set off against such 
judgment for costs. The attorney's claim in such case is not one 
of lien, but of ownership. 8 If the assignment be made before the 
right of set-off attaches, the assignment of course prevails. 4 If 
the assignment be made after a right of set-off given by statute 
has accrued, then the statutory right of set-off is paramount to 
the attorney's right under the assignment. 6 

The assignee, however, should give notice to the judgment 
debtor of the assignment, for otherwise the latter may make a 
settlement with the judgment creditor which will discharge the 
judgment and destroy the lien under the assignment 8 

An attorney's lien is merged in au assignment to him as 

1 Holt v. Quimby, 6 N. R. 79. * Ely v. Cook, 9 Abb. IV 366, affirmed 

* Benjamin r. Benjamin, IT Conn. 110 ; 38 N. T. 365 ; Parry ir. Chester, 53 N. Y. 

Kpmrill v. Hnnlinglon, 5 Day, 163 ; Rice 240 ; Navbr u. Lane, IB J. & S. 97 ; 

w. Garnhan, 35 Wis. 282. Newberg ». Schwab, 17 J. & S. 339. 

Otherwise in Iowa and Vermont, where * Firmenich w. Bovee, 4 T. ft C. 98. 

it i> held that the judgment in inch case * Fairbanks v. Derereom, 58 Vt. 359, 

pmrn subject to the equities against it 3 Atl. Rep. 500. 

in the band* of the assignor. Tiffany ». * Boston ft Colorado Smelting Co. v. 

Stewart, 60 Iowa, 307, 14 N. W. Rep. 241 ; Pleas, 8 Colo. 87, 10 Puc. Rep. 653 ; Seod- 

Bailingtr v. Tar bell, 16 Iowa, 491, 85 Am. dard c. Benton, 6 Colo. 508 ; Bishop v. 

Dee. 53,7 ; Fairbanks r. Derareanx, 58 Garcia, 1* Abb. Pr. N. S. 69. 

Vt. 359, 3 Atl. Rep. 500. 

151 



;y Google 



§§ 223, 224.] attorney's special lien. 

security (or his costs, and his only title or claim to tbe judgment 
after that arises from his title as owner. 1 

223. Equitable assignment of the judgment. — An agree- 
ment between an attorney and his client that the attorney shall 
have a lien for his services to a certain amount upon a judgment 
to be recovered, constitutes a valid equitable assignment of tbe 
judgment pro tanto which attaches to .the judgment as soon as 
entered. 3 Such an agreement is within the principle that an 
agreement between a debtor and creditor that the creditor shall 
have a claim upon a specific fund for payment of bis debt is a 
binding equitable assignment of tbe fund pro tanto. This is a 
settled rule in equity. Sometimes it has been objected that if 
such an assignment embraces only a part of the fund, it is not 
obligatory on tbe debtor without his assent, because his single 
obligation cannot be split up into several without his consent. 
This objection prevails only at law, but does not affect tbe rem- 
edy in equity. 3 

Tbe equity of the attorney under such an agreement is superior 
to the claim of the judgment debtor to set off against tbe judg- 
ment a judgment against the plaintiff, which the debtor had pur- 
chased after the entry of the judgment against himself, and before 
he had notice of the assignment. Failure to give notice of the 
assignment does not subject tbe assignee to merely equitable 
claims of tbe debtor, which do not attach to the debt itself and 
which accrue to him after the assignment. A claim of set-off 
against a judgment arising from a subsequent purchase of a judg- 
ment against the judgment creditor is not a set-off which attaches 
to the debt. A prior assignment, whether legal or equitable, of 
the judgment, prevents the right of set-off from attaching. The 
assignee's equity, being prior in time, is superior. 4 

224. Where a client agrees) that his attorney shall have 
a paramount lieu upon the claim in suit for his fees, charges, and 
disbursements, and to secure this agreement executes a power of 

i Biihop v. Garcia, 14 Abb. Pr. N. & 369 ; Potter t>. Hunt, G8 Mich. 343, 36 N. 

69 i Dod<] b. Broil, 1 Minn. 270. W. Hep. 58 ; Wells t>. Elsam, 40 Mich. 

1 Terncy v. Wilson, 45 N. J. L. 283; SIS. 

Middlesex Freeholders v. State Bank, 38 ' See S3 43-63. 

H. J. Eq. 36, 19 Cent. L. J. 398 ; Ely v. • Terney v. Wilson, 45 N. J. L. 98! ; 

Cook, 98 N. Y. 365; Williams v. Inuer- Brsdt v. Koon, 4 Cow. 416; Wright v. 

•oil, 89 N. Y. 508; Weeks r. Circuit Wright, 70 N. T. 96, affirming IX* 

Judges, 73 Mich. S56, 41 N. W. Rep. S. 433. 
152 



3igitiz eC by GOOgle 



NOT DEFEATED BT ATTACHMENT. [§§ 225-227. 

' attorney to a third person giving him the control of the suit, such 
power of attorney with the agreement operates to vest in the 
attorney an interest in the claim, of which he cannot be divested 
by tbe client of his own motion without satisfying bis part of the 
agreement. It is the duty and practice of courts to protect attor- 
neys in rights so acquired against the hostile acts of those from 
whom they are acquired. 1 

225. A lien upon a chose In action may be created by 
parol. Thus, an oral agreement by a client with his attorney 
that the latter should have a Hen for all sums that the client 
might become entitled to from any of the suits or proceedings 
conducted by the attorney, which lien should be superior to any 
right the client might have, was held to operate as an equitable 
lien upon an award to the client as damages for a malicious pros- 
ecu t ion.' 

226. The lien of an attorney for bis fees is, like any ohose 
in action, assignable. It is incident to the judgment to which 
it is attached, and is necessarily as much assignable as is the judg- 
ment to which it is incident. 8 

An attorney's lien is superior to the rights of a third person 
who is assignee of the judgment, 1 for the assignee has no greater 
equities tban the assignor had ; and though the assignee had no 
notice of tbe lien, this may be enforced as against him. 

X. An Attorney's Lien is not Defeated by Attachment^ or by the 
Client's Bankruptcy. 

227. An attorney's lien on a judgment is superior to the 
lien of a subsequent attaching or execution creditor.* It is 
immaterial whether the client be the plaintiff or defendant in the 
suit.' In equity, especially, the position of the party is of no con- 
sequence, because a nominal defendant may be adjudged entitled 
to the whole or a part of the funds in controversy. In equity, 

1 Stewart p. Hilton, 19 Blatchf. 390. * Ex parti Monte, 3 Mndd. 46? ; Dam- 

1 Williams v. Ingcrsoll,89 N. Y, SOS; aon b. Robertton, 13 Lea, 372; Miller v. 

Middlesex Freeholders v. Slate Bank, 38 Newell, 90 S. C. 133, 47 Am. Hep. 833 ; 

N. J. Eq.36, 19 Cent. L. J. 393. Hutchinson v\ Howard, 15 Vl 544; Weed 

1 Day v. Bowman, 109 Ind. 383, 10 N. •>. Bontelle, 56 Vt. 570, 581, 48 Am. Rep. 

East. Rep. 1S6 ; Sibley tt. County of Pine, 831 j Henry v. Traynor, 4! Minn. 234, 44 

31 Minn. 301, IT N. W. Rep. 337. N. W. Rep. 11 ; Justice v. Justice, 116 

* Cunningham v. McOrady, a Ban. 141 ; Ind. SOI, 16 N. E. Rep. 615. 
Longwonh t>. Handy, 2 Die. 75; Sexton 
a. Pike, 13 Ark. 193. 

168 



* Google 



§ 228.] attorney's special lien. 

also, an attorney may have a lien before judgment by virtue of a 
special agreement that he shall be compensated out of the fund 
recovered ; and such lien prevails against an attaching creditor of 
the client. 1 It matters not that such agreement is by parol and 
not in writing ; and it is not needful, in order to make such lien 
valid, that notice of it should be given to the debtors. 8 

228. An attorney 'a lien is not defeated by the insolvency 
or bankruptcy of the client, or by his general assignment for 
the benefit of. his creditors, pending the action, if judgment 
is finally entered in his favor. 3 The assignee in insolvency or 
bankruptcy stands in the debtor's place, and takes the estate bur- 
dened by the equitable incumbrance of the Hen. 4 Thus, where 
a railroad company, pending an action against it, became insol- 
vent and a receiver was appointed, and a judgment for costs 
was afterwards entered in its favor, it was held that the receiver 
had no title to such costs ; and the other party to tbe action, 
having paid the judgment to the receiver with notice of the lien, 
was not protected from an execution issued to the attorney on 
such judgment. 6 

But as against the judgment debtor, if he obtains a discharge 
in bankruptcy or insolvency after the rendition of the judgment, 
the attorney's lien upon the judgment is discharged with the 
judgment, like any other debt of the bankrupt. 

If a receiver of the client's property is appointed, and a judg- 
ment upon which an attorney has a lien passes into his hands, 
tbe attorney can obtain full protection in all proceedings taken 
by the receiver upon such judgment, and may, if need be, apply 
to tbe court for relief out of tbe assets or funds collected by the 



1 William*!?. Ingeraoll, 23 Hun, 284, 89 led for ihe residue, if any ; Or tbe creditor 

N. Y. SOB. may retain the property, if the assignee 

9 Williams v. Ingersoll, 23 Hun, 284, does not require it to be sold as provided, 

89 N. T. MS. and enforce hie lien. Rogers r. Heath, 6S 

' Cooke b. Thresher, SI Conn. 10S. Vx. 101, 18 AtL Rep. 1043, per Rowel], J. 

* There «re two ways of proceeding * In re Bailey, 68 How. Pr. 64, 4 N. 

when one ha* a lien on properly for secur- Y. Civ. Pro. 140; Russell d. Somerville, 

ing the payment of a debt against an in- 10 Abb. N. C. 399 ; Anderson v. Se»ion>, 

solvent debtor. If the assignee or the N. Y. Daily Reg. Mar. 4, 1884 ; Clark v. 

creditor requires it, the property is sold Binninger, 1 Abb. N. C. 4S1. 

under an order'of the court of insolvency, ■ Blumenthal v. Anderson, 91 N. Y. 

the net proceeds applied towards the pay- 171. 

inent of tbe debt, and the creditor admit- * Moore p. Taylor, 40 Hun, 56. 
154 



3igitiz eC by GOOgle 



OS LAND. [§ 229. 

The receiver acquires no other or better title than the assignor 
bad, but takes the property subject to the liens affecting it. 

If an attorney takes from his client collateral security for pro- 
fessional services, and upon demand of a receiver of bis client's 
property delivers the security to the receiver with a written no- 
tice of his lien thereon and takes a receipt therefor, he does not 
thereby waive his lien. 1 

The receiver of a corporation appointed pending an action 
against it, who collects costs arising from a successful defence, 
may be required to pay them over to the attorney who conducted 
the defence.' 

In equity an attorney has a lien for his fees and disbursements 
upon a fund in court recovered by his services. 8 This lien can- 
not be defeated by the insolvency of the client, or by his assign- 
ment of the fund. His assignee in bankruptcy or his assignee 
by purchase takes the fund subject to the attorney's lien with 
which it was affected as against the client. 

But a court of equity, before awarding any part of the fund 
in satisfaction of the attorney's lien, will inquire if the fee is 
reasonable. 4 

XL An Attorney's Lien on Land which is the Subject-Matter of 
the Suit. 
229. An attorney has no lien on his client's lands for ser- 
vices rendered in defending them against an effort to charge 
them with the payment of the debt of another ; 6 nor for ser- 
vices in prosecuting a suit in equity to establish the title of his 
client to the lands. 8 To extend the attorney's lien to lands recov- 

1 Corey v. Hart is, 91 Weekly Dig. 247. Hin»on t>. Gamble, 63 Als. 60S ; Hanger 

1 /«n Bailey, 31 Hun, 608, S N. Y. Cir. v. Fowler, SO Ark. 667; Hershy v. Da 

Pio. 253, «ffii'Hiiii(r4 N. Y. Cir. Fro. U0, V Hi, 4'/ Ark. 86, U 8. W. Rep. 4 69; Smal- 

66 How. Pr. $4. ley v. Clark, S3 Vt. 593 ; Cozzens v. Whit- 

■ S SOI a; Turn-in u. Gibson, 3 Atk. nay, 3 It. 1. 79 ; Humphrey v. Browning, 

730 ; Ex parU Price, 2 Vei. 407 ; Skinner 46 111. 476, 95 Am. Dec 446 ; Stewart v. 

tr. Sweet, 3 Madd. 344 ; Lann v. Charch, 4 Flowers, 44 Miss. S13, 7 Am. Bep. 707 ; 

Miuld. 391; Ex parti Moule, S Model. Marlins. Harrington, 57 Ml&s. 208 ; Fow- 

462 ; Jonea v. Frost, L. B. 7 Ch. 773. ler ». Lewis (W. Va.|, 14 S. E. Bep. 447, 

* McCain ». Fonis, 43 Ark. 403. 4S7 ; McCoy v. McCoy ( W. Vs.), 16 S. E. 

* Sbaw n. Nciile, 6 H. L. Cub. 581 ; Lea Bep. 973. 

v. Winston, 68 Ala. 403 ; McWilliami p. Under a statute of Louisiana giving at- 
Jenkins, 73 Ala. 480. torneyi a lien for fees " on all judgments 

* McCallough f. Floornoy, 69 Ala. 189; obtained by them," it was beld in Lnnean v. 

155 



;y Google 



§ 280.] attorney's special lies. 

ered in a suit would be in effect creating an equitable mortgage 
in his favor, and would be subject, not only to the objections 
urged against- such a lieu in England, but in this country to the 
further objection that it would be contrary to the policy of our 
registry system. 1 

An attorney's lien for his fee upon the judgment recovered does 
not attach to land which is sold in satisfaction of the judgment 
and purchased by the client. 3 

230. In some States, however, it is held that an attorney is 
entitled to an equitable lien on the property or thing in litiga- 
tion, whether real or personal, for his just and reasonable fees, 
and the client cannot, while the suit is pending, so dispose of the 
subject-matter in dispute as to deprive him of his lien. 8 

Edwards, 39 Lit. Ann. 876, G Sooth. Rep. turtle; or solicitor entitled to ■ charge 
£4, ilial it did not create a lien on land re- upon the property rccuvereJ or preserved 
covered, and in Weill v. Levi, 40 La. Ann. through his instrumentality for [he costs, 
135, 3 South, Rep. S59, that ft did not on charges, and expense! of or in reference to 
land successfully defended. such suit. This statute has been the sub- 
In some early cases in Kn gland a lien ject of construction or application in sev- 
seems to hare been given npon the land in era! cases. See 16 Ir. L. T. 331, 345. 
favor of the solicitor ; as where a solicitor Of course the lien under this statute it 
had been employed by the committee of a confined to the client's interest in the land. 
lunatic, lie was regarded as subrogated to Thus, if a tenant in tail employs a solicitor 
the lien of the committee upon the luna- te defend a suit, the latter gets a charge 
tic's estate, both real and personal. Barnes- on the estate of his client, but not on that 
ley v. Powell, 1 Amb. 10! ; Ex parte Price, in the remainder. If the client bars the 
2 Ves. 407, referred to by Chancellor Kent estate tail, and gets the fee, the solicitor 
in In re South wick, 1 Johns. Ch. 22. In gels a charge on tbe fee; but otherwise 
the cases first cited, there is a dictum by only the interest of tbe client. Berrie v. 
Lord Hardwicke to the effect that a solid- Howilt, L. II. 9 Eq. 1 . 
tor has a lien on the estate recovered in tbe " Hanger v. Fowler, 20 Ark. 667 ; Hunt' 
bands of his client. nhrey v. Browning, 46 III. 476. 

But the House of Lords, in Shaw r. '* Cowen v. Boone, 4B Iowa, 330. And 

Nealo, G H. L. Ca». 581, repudiated the sec Wisbard v. Biddle, 64 Iowa, 526, 528, 

doctrine that no attorney or solicitor bat 21 N, W. Rep. 15. Apparently the same 

an implied lien on the estate recovered, role prevails in Mississippi: Stewart v. 

Interrupting the argument, Lord Wcnsley- Flowers, 44 Miss. 513, 7 Am. Rep. 707. 

dale said : " I never heard such a proposi- Otherwise in Arkansas : Porter v. Hanson, 

t ion at law." Lord St. Leonards: "Nor 3G Ark. 591. 

I in equity." 'Tennessee: First recognized in Hunt 

In consequence of the decision in 8haw ». HcClanahan, 1 Heisk. 503 ; Perkins ■>. 

o. Neale, 6 H. L. Can. 581, ft was enacted Perking, 9 Hoisk. 95 ; Brown v. Bigley, 

by 23 & 24 Vic. ch. 127, §2B, that in every 3 Tenn. Ch. 6IS. But when the land in 

case In which an attorney or solicitor shall controversy is conveyed to the complain- 

be employed to prosecute or defend any ant partly in exchange for land conveyed 

suit, the court or judge before whom the to the defendant, the attorney of the lat- 

■nit has been heard may declare such at- ter bat no lien for his fees on the land so 

156 



3igitiz eC by GOOgle 



ON LAND. [§ 230. 

In Arkansas an attorney's lien has been extended by statute 
so as to charge lands recovered by the attorney. The lien is 
declared to be an interest in the property, whether real or per- 
sonal, recovered by judgment, to the amount of such judgment. 1 

In Georgia the code gives a lien on all property, both real and 
personal, recovered by judgment, superior to all liens except those 
for taxes. 3 One who purchases the land after the attorney has 
filed a bill to enforce his lien purchases with notice of the lien 
and takes the property subject to such lien. 8 

In Kentucky a statute provides that an attorney prosecuting 
to recover an action for property, real or personal, shall have a 
lien on it for his fee. 4 

There can be no lien, however, unless the suit be for specific 
land, or it impounds the property in litigation by some process 
which places it within the custody of the court, 6 

His lien upon land which is the subject of a decree is also en- 
titled to priority of satisfaction over the lien of a judgment cred- 
itor of the client acquired subsequently to the decree. 8 The cred- 
convcyed to hia client. Sharp p. Fields, extended to professional services which 
5 Lea, 326. Kentucky : Skaggs it. Bill merely protect an existing title or right 
(K) P .J, 14 S. W. Rep. 363. of property." The court declared that, 

In Colorado : Fillmore v. Wells, 10 Colo, without a statute to authorize it, attorneys 
231, 15 Foe. Hep. 313, the Hen was do- cannot sustain a claim against real estate 
dared to extend lo really recovered, but for services in either prosecuting or de- 
the decision waa bated expressly on a fending a suit involving it. 
statute; and the opinion in the care ad. ■ § ITS; Code 1882, § 1989 ; Wilson u. 
tnita that it could not be sustained by the Wright, 72 G\ S4S. 
common law, saying : " There are a few * Wilson », Wright, 72 Ga. 818. 
decisions which aeem to sustain the at- * Skaggs d. Hill (Ky.), U S. W. Rep. 
torney's right to look, through hia lien, 363. But under this statute, "where no- 
te the land for hia taxable fee*; but the thing is recovered for hi* client, there is 
weight of authority undoubtedly sane- nothing to which an attorney's lien can 
tions the proposition that no such privi- attach." Wilson v. House, 10 Bush, 406. 
lege is awarded by the common law." ' Sharp* v. Allen, 11 Lea, MB ; Brown 

1 §170; Qantt's Dig. j 3622 ; Porter t>. v. Biglay, 3 Tenn. Ch. 618. 
Hanson, 36 Ark. 591 ; Compton v. State, " Pleasants v. Kortrecht, S Heisk. 694, 
38 Ark. 601. Soch a lien had been pre- though the principle perhaps not prop- 
vionaly denied la Hanger v. Fowler, 20 erly applied to the facts. " The inclina- 
Ark. 667. In the late case of Henhy v. lion of the court* of this country, and 
Da Val, 47 Ark. 86, 14 8. W. Rep. 469, it none more so than those of this State, baa 
waa held that "a solicitor has no lien upon been to enlarge the doctrine of equitable 
hi* client's land for hia fee for service* lien* and charges with a view to the at. 
rendered in removing a cloud from his tatnment or the ends of justice, without 
title to it;" that the lien provided by said much respect for the technical restriction* 
act "is limited to cases where there has of the common law. It waa a logical re- 
bean an actual recovery, and cannot be salt of this tendency that oar Supreme 

167 



jipismb, Google 



§ 280.] attorney's special lien. 

itor's right is against the property of the debtor, and not against 
the interest of a third person in such property, though this inter- 
eat be a mere lien or equity. 

Independent of the registration laws, the creditor's equity is 
equal and not superior to the equity of third persons, and there- 
fore whichever is prior in time has the better right. 1 

But the defendant's solicitor is not entitled to a lien on his 
client's land for services rendered in defending a suit in which it 
was sought to establish a resulting trust in such lands, although 
the defence was successful. The lieu exists only in case of the 
actual recovery of land by a suit instituted for that purpose. It 
cannot be extended to services which merely protect an existing 
title or right to property. 3 

Court ihoald follow the lead of Lord was aeen that this extension of the doc- 

Hardwicke, made before the Revolution, trine could not be sustained upon the 

rather than the modern doctrine of the principle! of the original decision, nor 

House of Lords. And it was both nat- upon general principles. It operated at 

ural and wiae that the lien of the lawyer a restraint upon the free disposition of 

on the fruits of his professional labor property, and created a new and secret 

should be treated aa equitable rather than trust, not only unknown to the common 

legal. The proper administration of 'Jus- law, but not warranted by its principles, 

tice is essential to the well-being of the and in conflict wiih the policy of our reg- 

repnblic, and cannot be secured without {stratum laws. It was therefore held by 

an enlightened and prosperous bar." this court that the lien exists only in the 

Brown v. Digley,3 Term. Ch. 618. ease of the actual recovery of lead, by a 

1 Brown t>. Bigley, 3 Tenn. Ch. 618. suit instituted for the purpose, just as at 

1 Garner d. Garner, 1 Leo, £9 ; Stan- common law the lien was on the money 

ford d. Andrews, IS Heislc. 664; Sharp u. judgment recovered. The lien, it was 

Fields, 5 Lea, 336; Guild v. Bonier, 7 said, is declsred to exist from the coin- 

Bas. 266; Winchester v. Hoiskcll, 16 Lea, mencemenl of the suit, — manifestly con- 

656, 119 U. S. 450,7 Sup. Ct. 281; but tcmpkling a suit for the specific property ; 

the merits of ihe case were not considered and the doctrine, although an extension 

by the Supreme Court; Fowler t>. Lewis of the principle of the common law, may 

(W. Vs.), 14 S. E. Rep. 447, 458. The be sustained upon the ground that the 

language used in the first decision in Hi pendens is notice to all the world of 

which a lien on laud was recognized the plaintiffs right, and no great barm 

(Hunt o. McCIanahan, 1 Heist 503) can result from carrying out of this right, 

seemed to imply that the lien existed in a lien in favor of the attorney running 

favor of counsel, whether retained by the pari point with the lien of the lit pendent, 

the plain tiif or the defendant, and to give But the lit pendent is no notice to any one 

a lien on the land in controversy to the of the defendant's righto, which stand 

lawyer of the successful party. "In con- precisely as if no suit were pending; and 

sequence of this construction the practice consequently a lien on that right, without 

of the courts was, for a time, very liberal, contract, would be without any rule or 

and the lien was declared in favor of the analogy to support it, besides being in 

counsel of the defendant a* well as of the conflict with the policy of our registration 

plaintiE. Upon further consideration it laws." Cooper, J., in Pierce v. Lawrence, 

168 



jipismb, Google 



WAIVER OF. [§ 281. 

Aii attorney has do lien upon the assets of an estate realized 
from a sale of its lands for defending a suit brought to establish a 
demand against it. 

Nor has he a Hen upon a fund arising from sale of land of a 
person or estate, already owned by such person or estate, for ser- 
vices purely defensive, in resisting suits brought to establish 
demands against it. 1 

An attorney's lien on land for servicee in defending a suit 
affecting the land may be rendered binding upon the parties, and 
those claiming under them, pending the litigation, if declared by 
the court in which the services were rendered; but such lien 
does not affect third persons having prior liens upon the laud. 9 

XII. Waiver of an Attorney^ Lien. 

231. This lien may be waived by an arrangement or trans- 
action between the attorney and his client which shows the at- 
torney's intention to rely upon some other security or mode of 
payment. 3 The taking of a promissory note by the attorney does 
not necessarily imply a waiver of his lien, for thia may have been 
given merely for the purpose of fixing the amount of the debt. 
But the taking of a distinct and independent security will gen- 
erally amount to a waiver of the lien, for the attorney in such 
case has carved out his own security, and is presumed to have 
intended to waive his lien. It is true, however, that the waiver 
arising from the acceptance of collateral security is presumptive 
only, and may be rebutted by evidence of an intention not to rely 
exclusively upon it, but to retain the equitable lien. 4 

An attorney waives his lien upon a judgment by keeping silent 
about it, when his silence would operate as a fraud upon another. 
On a motion to open a default, the court required the defendant 
to stipulate not to dispose of a judgment in his favor against a 
third person, and to make the judgment in plaintiff's favor a lien 
thereon. The attorney who represented defendant had a lien on 

IS Lei, 578, 1 8. W. Rep. S04. See, how- ject thereto. This iu nnder the Coda, 

erer, Stxohecker n. Irrine, 76 Gl 639, hold- J 1989. 

iiig That the lien of an attorney for Kiricei ' Fowler v. Lewie (W. V»), 14 8. E. 

in neroafullj reacting a levy on a homo- Rep. 447. 

tfead and obtaining it to be art apart as * Pierce v. Lawrence, 16 Lea, S79, 1 

■m exemption ■■ in the natnre of labor 8. W. Bep. 20). 

done On the homestead and of purchase * Ronick v. Ludington, 16 W. Va. 373, 

money thereof, and the homestead ii *ub- * Renkk v. Lading ton, 16 W. Va. 378. 

159 



* Google 



§ 281.] attorney's special lies. 

such judgment for his services in procuring it, but made no men- 
tion thereof, and, as a notary public, took defendant's acknow- 
ledgment of the stipulation. It was held, that he was estopped 
to assert his lien against the claim of plaintiff under the stipula- 
tion. 1 The attorney waives his lien by his acquiescence in a satis- 
faction of the judgment by the payment of money or the transfer 
of property to his client, and he cannot afterwards enforce his 
lien upon Buch money or property, but must look to bis client 
alone for his compensation. 3 

An attorney's lien upon a judgment is waived by his procur- 
ing a transfer to his client of land attached in the suit in satis- 
faction of the judgment. His lien upon the judgment does not 
follow the land when the title is perfected in the client. Sub- 
sequent purchasers of the land from the client have a right to 
suppose the lien has been waived or satisfied. 3 

An attorney's lien upon a judgment is not discharged by his 
delay in collecting it, though this delay be for several years.* 

It is not lost though hia claim against his client is barred by 
the statute of limitations. 6 

It is not divested by his allowing his claim to become dor- 
mant, so that it has to be revived by other attorneys. 8 

Neither is it lost by the attorney's receiving or collecting a 
part of the judgment, and paying over the part so collected to 
his client without deducting his fees. He can enforce his lien 
upon the balance of the judgment. 7 

It would seem that an attorney's lien would not prevail against 
a State in whose favor he has obtained a judgment, in the absence 
of a special statute giving such a lien. 8 

1 Clare v. Lockard, 122 N. Y. 963, 24 • Jenkins v. Stephens, 60 Gi. 116. 

N. E. Rep 453, reversing 2 N. Y. Supp.646. * Hooper i>. Brundage, 23 Me. 460. 

1 Goodrich o. McDonald, 112 N. Y. ■ Com p ton v. State, 38 Ark. 601, 604. 

1ST, 19 N. E. Hep. 649, 16 Civ. 1'rac. Rap, M any rate, no decree of a lien could be 

222, reversing 41 Hun, 235 ; In re Keefe, taken against a Stele, though, in cue the 

85 N. Y. 284 ; Marshall v. Meech, 51 N. Y. funds are within the control of the court, 

140; St- John n. Dicfcndorf, 12 Wend. It may, tn the exercise of its equitable 

SSI. powers, have the feel paid out of the fond. 

* Cowen p. Boone, 48 Iowa, 350. State v. Edgefield 4 Ky. R. It. Co. 4 Box. 

* Stone c. Hydf, 22 Mo. 318. 92; Wood p. State, 125 Ind. 219,25 N.E. 

* Higginav, Scott, 2 B. & Ad. 413. Rep. 190, § 154 a. 



3igitiz eC by GOOgle 



BEUEDIES FOB ENFORCING. [§ 232. 

XIII. An Attorney's Remedies for Enforcing his Lien. 

232. In general it may be said that the attorney haa the 
same remedial process as his client to obtain satisfaction to 
the extent of his lien, inasmuch as he is regarded to that extent 
aa an equitable assignee of the judgment. Therefore, where a 
judgment has heen rendered for the defendant in a replevin suit, 
the attorney has a right to enforce the replevin bond taken from 
the plaintiff for the return of the goods. And if the sheriff has 
taken an insufficient bond, the attorney baa a right to the dam- 
ages which may be recovered from the sheriff for his neglect in 
taking such bond. The judgment in such suit belongs to the 
attorney to the extent of his lien. 1 

An attorney who has prosecuted a bastardy process to final 
judgment and execution has a Hen upon the bond given by the 
respondent in that process. 3 

When an attachment has been made, the lien of the attach- 
ment inures to the benefit of the attorney for his fees and costs, 
and this cannot be defeated by any settlement made by the client 
with the debtor, without his consent. 8 

Where a judgment is a lien upon real estate, and this is about 
to be sold under execution, an attorney's lien upon the judgment 
will not be protected by a stay of a sale under the execution, but 
the sheriff may be stayed from paying the proceeds of sale to the 
plaintiff or his assignee under the execution until the amount of 
the attorney's compensation can be ascertained. 4 

But the attorney can hardly be considered as the assignee of 
the judgment in such a sense as to entitle htm to go into another 
court to enforce his lien by an action in his own name. 6 

The attorney may enforce his lien by an action on the judg- 
ment in the name of the creditor. 9 

The lien of an attorney upon a judgment is enforced according 
to the law of the State where the judgment was recovered and 
the lien attached, and not according to the law of another State 
where it is sought to collect the judgment. 1 

< Newbert v. Cunningham, SO He. 231, * Arfama B . Fox, 40 Barb. M2. 

79 Am. Dec. 612. * Stone t>. Hyde, 22 Me. 31S. 

1 Bieklord p. Ellis, 50 He. 191. ' Cilixenit' Nit. Bank e. Culver, 54 N. 

* Gift v. Hnnly, 33 Ark. 233. H. 337, SO Am. Rep. 134. 

* Loanen' Bank ■>. Noetrand, 31 J. & 
8. 535. 

vol. l. 11 161 



y, Google 



{ 283.] attorney's special lien. 

233. When the parties have collusively settled a suit 
before judgment, with the design of preventing the attorney 
from obtaining his costs or fees, the court may allow the attor- 
ney to go on with the suit and obtain a judgment for the amount 
of his costs or fees, notwithstanding the settlement. 1 If the set- 
tlement has been filed in the court, the attorney should first obtain 
an order setting it aside. His course then is to bring the case 
to trial and final judgment in the name of his client. He is not 
entitled to an order to enter judgment for the amount of his costs 
without bringing the cause to trial; and a judgment so obtained 
ib irregular. 3 In such cases the attorney must establish the collu- 
sion. 8 

A plaintiff who has obtained a judgment may consent that the 
judgment in his favor be set aside by the court, but it must be 
subject to the right of his attorney to his fees, and afterwards the 
attorney may proceed to establish his right to his fees, in doing 
which he must establish the plaintiff's right to recover on the 
state of facts existing at the time the case was first disposed of, 
independently of the question of fees. 4 

Where a judgment is compromised, pending appeal, without 
notice to the attorneys of the successful plaintiff, they may en- 
force their lien against defendant in equity. 6 

In New York, according to the later and present practice, the at- 
torney is entitled to proceed with the action without first obtaining 

1 Itasqnln v. Knickerbocker Stage Co. the proceedings and doings of the attor- 

19 Abb. Fr. 324 ; People v. Hardenbergh, nay, so as to fall; protect the rights of 

8 Johns. 335 ; Tmlcott v. Branson, 4 Paige, both parties, and not unnecessarily annoy 

HI ; Chase t>. Chase, 69 How. Fr. 306. and embarrass either." Pei Barker, J. 

In some cases it ia laid that, before an In Moore t-. Taylor, 3 How. Pr. N. S. 

attornej can proceed with an action after 343, it is said that leave of conn to inflli 

settlement and discontinuance by the lute such proceedings ia especially reqni- 

client, the attorney should obtain leave of site where the affidavit says nothing about 

court to enforce his lien by supplementary any lien. 

proceedings. Dimick v. Cooley, 3 S. I. ' Pickard c. Tencer, 31 Han, 403, 10 

Cir. Pro. 141. In this case the court say : Week. Dig. 271; Smith v. Baura, 67 

"It would be an unwise and dangerona How. Pr. 367 j Wilber u. Baker, 94 Hon, 

practice, extremely hazardous to the rights 34. 

of both parties, to allow an attorney to * Lang v. Buffalo Seamen's Union, 33 

continue the action, for the purpose of Alb, L. J. 114. 

collecting hie coatt, without first obtaining * Twiggs, o. Chambers, 66 Ga. 379; 

consent of the court that he may proceed Coleman r. Ryan, 58 Ga.132; Rodgers r. 

for that purpose. When such permission Furor, 83 Ga. 115,9 8. E. Rep. 669. 

is given, it ia the duty of the court to di- * Covington b. Bast, 88 Tenn. 496, 19 

rect as to tlie lime and manner, and Watch 8. W. Rep. 1033. 

162 



3igitiz eC by GOOgk 



REMEDIES FOB ENFORCING. [§ 234. 

leave of the court to do bo. 1 He may prosecute the suit to trial 
and final judgment in the name of his client, with a view to the 
protection of his own rights. 

In this State, however, if the attorney is the equitable" owner 
of the entire judgment recovered, as is the case where the judg- 
ment is for costs only, he should prosecute in his own name an 
undertaking given to secure its payment, inasmuch as the code 
directs that every action shall be prosecuted in the name of the 
real party in interest, whether lie be a legal or equitable assignee 
of the cause of action. 2 If he brings such action, even with 
leave of the court, in the name of his client, for the purpose 
of enforcing his lien, a previous assignment by his client of 
the cause of action and release of the judgment will bar the 
action. The order allowing the attorney to proceed does not 
determine that the attorney is entitled to recover the sum he 
claims, nor does it determine any of the issues between the 
parties. 8 

234. The English practice in such oases seems to have been 
for the attorney, whose lien has been destroyed by the conduct 
of the parties, to move the court to vacate the satisfaction of 
judgment, and to apply for a rule calling opon the opposite party 
to pay him his costs. 4 Although the parties to the suit have 
colluslvely settled the judgment, the attorney has no such au- 
thority over the execution in his hands as to enforce it against 
the judgment debtor of his own mere motion and without his 
client's consent. He must apply to the equitable jurisdiction of 
the court. 6 

A similar mode of practice prevails, or has prevailed, in some 
of our state courts. 

The plaintiff's attorney may also be protected upon his appli- 
cation to the court for a rule restraining the judgment debtor 

1 Pkkard K. Yencer, 31 Hun, N. T. • Kipp v. Hupp, 3 How. Pr. N. S. 169, 
403, 10 Week. Dig. a71 i Wilbsi v. lin- 7 Civ. Pro. 31S, 317. 

ker, 34 linn, 34 ; Fomroan t>. Sciwhing, * Welsh ». Hole, 1 Dong. 338 ; Graves 
3S Hun, N. Y. 504 ; Merchant v. Sesiione, ». Elides, 5 Taunt. 429 ; Reid V. Dapper, 
S N. Y. CiT. Pro. 24. 6 T. R, 881 J Churl wood a. Berridge, 

The cue of Goddard b. Trenhatb, 34 1 Eap. 349 ; Jones v. Bonner, 3 Exch. 
Hon, 182, holding that leave of court matt 330. 
be obtained to prosecute ibeauit in inch 
oats, U overruled. 

1 Kipp r. Rapp, 3 How. Pr. N. 8. 169, 
7 Gv. Pro. 316, 317. 



3igitiz eC by GOOgle 



§§ 235, 236.] attorney's special lien. 

from paying the money to the plaintiff until the attorney's lien 
is satisfied. 

When a decree has been entered for the payment of money 
to a complainant, and his solicitor has given the defendant no- 
tice that he claims a lien on the moneys decreed to be paid, and 
this notice is disregarded by the defendant, the latter may, on 
an order of the court to show cause, be required to pay to the 
solicitor snch amount as he should establish a lien for upon a re- 
ference made by the court. 1 

236. An application to the court by an attorney to pro- 
tect his lien upon a judgment is addressed to the discretion of 
the court. 3 The right of the attorney to claim the lien should 
<be clear to justify the court's interference. But it 1ms the power 
to interfere, whether the lien be for the taxable costs or for com- 
pensation, when a lien for this is given by statute. When the 
amount of compensation is in dispute, the court may direct that a 
sufficient sum to cover the claims be brought into court to await 
an action at law, or other procedure between the attorney and 
client to settle the amount. 8 

In Indiana a complaint by an attorney to set aside an entry 
■of satisfaction of a judgment on the ground that it was fraudu- 
lently made should allege the amount of fees due him, either 
by stating the contract with his client respecting his fees, or by 
averring the value of his services. 4 The complaint should allege 
that the lien was taken, and notice of it filed at the time of the 
rendition of the judgment, for such entry and notice are required 
to make the lien effectual. 6 

In some cases the courts, after declaring the lien, have directed 
a reference to a master to determine the proper amount of the 
attorney's charges ; 6 but perhaps the better practice is to declare 
the lien, and leave the attorney to enforce his claim by an appro- 
priate proceeding against his client. 7 

236. Upon an application by a solicitor for money which 

1 Barnes o. Tajlor, 30 N. J. Eq. 467. Bowman, 109 Ind. 383, 10 N. £. Rep. 

2 Adams c. Fox, 40 Barb. 44! ; Hawitt 126. 

». Merrill, 113 N. Y. 630, 20 N. E. Rep. * Day t>. Bowman, 109 Ind. 383, 10 N. 

866. E. Rep. 126. 

1 Adams v. Fox, 40 Barb. 442 ; Fox v. * Bnnt v. McChuiah.n, 1 Heist. 503 ; 

Fox, 24 How. l'r. 409, 417. Tourie v. Niton, 1 Tenn. Cli. 614; Bow- 

* Dnnning v. Galloway, 47 Ind. 169; ling p. Scales, 1 Teun. Ch. 618; Buhhc. 

Adams v. Lee, S3 Ind. 687; Da; e. Taylor, 30 N. J. Eq. 467. 

164 ' Ferkina v. Perkins, 9 Heisk. 95. 



REMEDIES FOR ENFORCING. [§§ 237, 238. 

has been paid into court under a decree, his claim cannot be 
passed upon without notice to his client and proof to maintain 
his claim, though the client has assigned to him the cause of 
action upon which the decree was founded as security for his 
services. 1 

237. But if the attorney waits for an unreasonable time 
after his olient has settled with the opposite party, and dis- 
charged the judgment, the satisfaction will not be set aside in 
order to allow the attorney to obtain his costs. 8 Great and un- 
reasonable delays and laches on his part in asserting his rights 
are fatal to his claim, as they would be to the claim of any 
ordinary suitor. Although proceedings by an attorney to enforce 
his claim do not constitute an action within the literal operation 
of the statute of limitations, yet in enforcing a remedy of this 
character, depending upon the equitable powers of the court, 
and, to a certain extent, upon its discretion, it will in general 
be governed by the analogy of the statute. 8 

After the litigation is ended and the client has possessed him- 
self of the entire fund recovered by the litigation, the court has 
no power to give relief to the attorney.* 

238. An attorney is not bound to make himself a party 
to the record in order to enforce his lien for fees against a 
judgment obtained for his client. If he has given notice to the 
judgment debtor of his lien, he may enforce it notwithstanding 
a compromise and settlement between the judgment debtor and 
his client; the court may, however, allow the attorney to inter- 
vene, after judgment, and be made a party to the suit, when 
that course seems necessary for the protection of his rights. 6 

In Nebraska, it is said that under some circumstances the 

1 Black r. Black, 32 N. J. Eq. 7*. tlia attorney cannot proceed by rule to 

When an attorney claims a lien upon collect his fees. The court has no j mis 

money In the hands of an officer of tbo diction to control its officers and the par. 

court, and the claim is controverted by ties connected with a judicial proceeding 

the client, a rule is the proper remedy in after the litigation has ended. Whittle v. 

Georgia to settle the question. To such Newnrnn, 34 Ga. 377. 
rule the attorney need not attach a bill of ' Winnns d. Mason, 33 Barb. 522. 
particulars of the services rendered by ■ Richardson v. Brooklyn C. & N. R. It, 

him, nor need he upon trial go into proof Co. 7 Hun, 69. 

of the same; but the services will be * Whittle v. Nawtnan, S4 Ga. 377. 
treated as a whole. Walker v. Floyd, 30 '■ Patrick e. Leach, 3 McCrary, 535, 17 

Ga. 937. But after the client has pos- Fed. Rep. 476. 
seated himself of the entire fund recovered, 

165 



, Google 



§§ 239, 240.] ATTORNEY'S SPECIAL LIEN. 

attorney may properly be admitted as a party plaintiff in the 
action for the purpose of protecting and enforcing his lien. In 
such proceeding it would be the proper practice for the attorney, 
on being admitted as a party, to file a petition in his own name 
against both plaintiff and defendant, setting forth the particulars 
of his claim, so that if it be disputed answers could be filed, and 
issues made up as in other cases. 1 

239. In an action to dissolve a partnership the court will 
not appoint a receiver in order to secure the lien of the plain- 
tiffs attorney ; for a receiver is appointed in such an action only 
when it is absolutely necessary to do so for the protection of the 
property. If the attorney has given notice of bie claim before 
the settlement, be may be allowed to go on with the suit and 
enter up judgment for his costs. 3 

240. In proceedings to wind up an insolvent life insur- 
ance company an attorney was retained by certain policy hold? 
era, and appeared in their behalf. A dividend to each of his cli- 
ents was declared, whereupon be claimed a lien and moved that 
the receiver pay the dividends to him. It did not appear that 
these policy holders were formal parties to the proceedings, or 
that the attorney entered his appearance of record, nor that his 
services procured the dividends. The attorney's inotiou was 
denied, except upon his filing authority from his clients to re- 
ceive such dividends. It was doubted whether he had any lien 
under the code ; and, whether he had or not, the court could not 
make an order practically enforcing a lien without notice to the 
clients. 8 

1 Reynolds v. Reynolds, 10 Neb. 574, 7 The existence of * contract between a 

N. W. Hep. 838, cited with approval in client and bis Attorney, where there is do 

Oliver b. Sheeley, 11 Neb. 531, E> N. W. claim for a lieu, would not be notice to 

Hep. 089 ; Elliott v. Atkins, 26 Neb. 403, the adverse party that he intended to ss- 

«3N.W. Kep. 403. "An attorney, there- sen the claim against him, aa it might be 

fore, who desires to enforce a claim for presumed that such attorney intended to 

his services must file a lien to that effect ; rely on the responsibility of his own cli- 

otherwise he cannot enforce a claim ent," Per Maxwell, J. 

(gainst the advene party. Thia claim '' Anon. 3 Daly, 533. 

for a lien may be filed with the papers in * Attorney-General v. N. A. L. Ins. Co. 

the case, and the adverse party will be 93 N. T. 387. 
chargeable with notice of its existence. 

166 



jipismb, Google 



CHAPTER VI. 

BANKBBS' LIENB. 

I. Nature and extent and the indebted- I IL Application as between correapond- 
ncii secured, 241 258. f ing bunks, 357-361. 

I. Nature and Extent and the Indebtedness Secured. 

241. A bank has a lien on all moneys, funds, and securi- 
ties of a depositor for the general balance of his account. 1 
Thus, if a bank discounts a note for a depositor, and this is not 
paid at maturity, all funds of the depositor held by the bank at 
the time of the maturity of the note, or afterwards acquired in 
the course of business with him, whether on general deposit or 
in the form of commercial paper placed by him in bank for col- 
lection, may be applied to the discharge of his indebtedness to 
the bank or such note. 1 And the rule is the same as regards 
any other indebtedness, such as an overdraft or an advance of 
any kind. 

242. The lien of bankers is part of the law merchant, 
and the courts are bound to take judicial notice of it, just as 
they are bound to recognize the negotiability of bills of ex- 

1 Jonrdaine e. Lefevre, 1 Esp, 66; Da- nU, Idaho, Oklahoma, hTorth Dakota, and 

vis v. Bowsher, 5 T. R. 488; Scott v. Booth Dakota that a banker has a general 

Franklin, IS East, 438; Bolton v. Fuller, lien, dependent on possesion, upon all 

1 B. * P. 639 ; Gitei v. Perkins, 9 East, property in hii hand) belonging to a eos- 

12; Holland v. Bjgrare, R. & M. 971 ; In tomer, f or the balance doe to him from 

re Williams, 3 If, R. Eq. 346 ; Brandio such customer in the conne of the bnni- 

t>. Harnett, IS CI. & F. 787; Marsh v. ness. Cal. Civ. Code, | 3054 ; B. 8. Idaho, 

Oneida, Bank, 34 Barb. 398; Beckwith e. I887,*344B; Dak. Civ. Code, j 1808; Okl. 

Union Bank, 4 Sandf. 604; Commercial Comp. State. 1890, § 3331. 

Bank ol Albany v. Hughes, 17 Wend. 94; In Pennsylvania the doctrine of bankers' 

I* re Van Allen, 37 Barb. 335 ; Ford liens does not prevail. It is regarded as 

p. Thornton, 3 Leigh, 695; State Bank ». opposed to well-established legal prinr.i- 

Armstrong, 4 Dev. 519; Whittington c. p', s, and as a custom it cannot therefore 

Fanners' Bank, 5 liar. & J. 489; He- obt.'n. Liggett Spring and Axle Co.'s 

Dowel! v. Bank ot Wilmington, I Hair. Appe. I, 111 Fa. St. 291. 

369. * M ench». Valley Nat. Bank, 11 Mo. 

It la declared in the codes of Celifor- App. 1 4. 

167 



3igitiz eC by GOOgk 



§§ 243, 244.] bankers' liens. 

change. Tims Lord Lyndhurst, in a case before the House of 
Lords, said: 1 "I think there is no question that, by the law 
merchant, a banker has a lien upon securities deposited with him" 
for his general balance. I consider this as part of the estab- 
lished law of the country : the courts will take notice of it ; it 
is not necessary to plead it ; nor is it necessary that it should be 
given in evidence in the particular instance." Lord Campbell 
in the same case said : " The usage of trade by which bankers 
are entitled to a general lien is not found by the special ver- 
dict ; and, unless we are to take judicial notice of it, the plaintiff 
is at once entitled to judgment. But, my lords, I am of opinion 
that the general lien of bankers is part of the law merchant, and 
is to be judicially noticed, like the negotiability of bills of ex- 
change, or the days of grace allowed for their payment. When 
a general usage has been judicially ascertained and established, 
it becomes part of the law merchant, which courts of justice are 
bound to know and recognize. Such has been the invariable un- 
derstanding and practice in Westminster Hall for a great many 
years ; there is no decision or dictum to the contrary ; and justice 
could not be administered if evidence were to be given, toties 
quoties, to support such usages, an issue being joined upon them 
in each particular case." 

243. Courts will not, however, Judicially take notice of 
the lien of bankers who are not striotly such. In the case of 
persons engaged in discounting, buying, advancing on, or selling 
bills or notes, a lien for a general balance will not be presumed to 
exist in the absence of an express agreement. If a usage exists 
to give such a lien, it should be proved. 3 

244. A banker has a lien on all securities of his debtor in 
his hands for the general balance of his account, unless such a 
lien is inconsistent with the actual or presumed intention of the 
parties. 3 The lien attaches to notes and bills and other business 

1 Brandao v. Barnett, IS CI. & Fin. 787, Dili. S3S ; Brandao c. Burnett, 6 Man. S. 

3 C.B. 519, 535,6 M. &. Ur. 630, approved Gr. 630, 670, 7 Scott N. R. 301, 332, per 

in Misa t>. Carrie, L. B. 1 App. Cai. 354, Lord Dcnman, 3' C. B. M9, IS CI. & F. 

969; Mucnch v. Valley Nat. Bank, 11 787; approved in London Chartered Bunk 

Mo. App. 144 ; Grant s. Taylor, 3 J. & 3. of Australia e. White, L R. 4 App. Caa. 

338. ,| 413, and in Misa v. Currir, L. R. 1 App. 

* Grant v. Tajlor, 3 J. 4 S. 33S. Cas. SS4, S69 ; In re European Bank, L. R. 

* Davis v. Bowaher, 5 T. R. 41 1, 491, 8 Ch. 41 ; Wyman v. Colorado Nat. Bank, 
per Lord Kenyon ; Kelly v. Pyjan, 5 Colo. 30, 40 Am. Hep. 133; /a r* Wil- 

168 



3igitiz eC by GOOgle 



NATURE AND EXTENT OF. [§ 245. 

paper which the customer has intrusted to the bank for collec- 
tion, as well as to his general deposit account. 1 Whether there 
is each a lien in a particular case depends upon the circumstances 
attending it. If there is nothing in the transaction which repels 
the presumption that the banker gave credit on the strength of the 
debtor's securities in his hands, he has a lien upon them for the 
general balance due him from the debtor. And so if the securi- 
ties be deposited after the credit was given, the banker has a lien 
for his general balance of account, unless there be an express 
contract or circumstances that show an implied contract incon- 
sistent with anch lien. 

A banker has a lien for a general balance of account upon 
securities left with him by a customer without any special agree- 
ment; 3 and if a portion 6f the securities so left be afterwards 
pledged to secure a particular debt, the banker has a lien upon 
the securities not so pledged for his balance of account." 

246. A banker's lien secures only anoh debts as are das 
and payable to the banker at the time he claims to retain his 
customer's funds or securities. 4 If a bank discounts a note for a 
customer, and places the proceeds to his account, it has no right 
to retain the amount of his general deposit to apply upon an 
indebtedness of the customer not yet matured. To do this would 

liams, 3 Ir. Kq. 346, SO L. T. N. S. 2SS ; however, that the assignee was entitled to 

Lehman b. Tallassoe Mannf. Co. 64 Alt. recover the entire Bum in depoeit, the sit- 

567, 5!)5. nation of the bank not being affected by 

1 Bninett v. Brandlo, 6 M. 4 G. 630 ; want of notice of the assignment, 

£r parte Pease, I Rose, 333 ; Ex parte In a case in HUnoU, Fourth Nat Bank 

Wakefield Bank, 1 Rose, 313; Scott if. u. CitJ Nat. Bank, 68 III. 398, where a 

Franklin, 15 East, 428. customer obtained a discount of his note 

1 Davit, r. Bowsher, 5 T. Ti. 488, 491. at a hank, and the money was placed to 

1 Damont «. Fry, 13 Fed". Rep. 433. hii credit, and he became insolvent, before 

1 Jordan r. Nat. Shoe 4 Leather Bank, the maturity of the note, having at the 

74 N. T. 467, 30 Am. Rep. 319 ; Beck- time a deposit to his credit against a pert 

with o. Union Bank, 4 Sandf. 601. In the of which he had drawn a check, it waa 

latter case a depositor waa an indorser on held that the bank had no lien as against 

a bill held by the bank. He made a gen- the check holder who presented this check 

era! assignment for the benefit of tiii cred- for payment before the maturity of the 

iton before the bill matured, and at that note. The value of this decision as an 

time there waa a balance to his account at authority elsewhere is impaired by the 

the bank nearly eqnal to the amount of role adopted in this Slate that a check U 

the indorsed bill. The bill was protested an appropriation of to much of the depos- 

st maturity and charged to hi* account ttor'a account.givinghimarigbt of action 

by the bank, before notice of the assign- for tt against the bank. 

meBt wm fireu to the bank. It was held, See Bolland v. Bvgrave, Ry. 4 M. S71. 

*69 



;y Google 



§§ 246, 247.] BANKEBS' LIENS. 

be in complete hostility to the purpose contemplated in the eon- 
tract of discount. " The purpose existing and understood by the 
parties in that act is, that the customer of the bank may draw 
out at hia pleasure the avails of the discount. After the paper 
discounted falls due and payable and remains unpaid, nnless 
other rights have intervened, the bank may hold a balance of 
deposits and apply it towards the payment of the paper. But 
these deposits in a bank create between it and the depositor the 
relation of debtor and creditor. Now a debtor in one sum has 
no lien upon it in his hands for the payment of a debt owned 
by him, which has not yet matured ; nor has a bank, more than 
any other debtor. Both hold, as debtors, the moneys of their 
creditors, and may set up no claim to them not given by the law 
of set-off, counter-claim, recoupment, or kindred rules." ' 

246. In equity it has been held that the lien of a bank may 
attach before the indebtedness has matured. Thus, where a 
depositor, having obtained a discount at a bank, died before the 
note matured, upon evidence of danger that his estate and also 
the indorser's would prove to be insolvent, it was held that the 
bank should be allowed to retain enough of the funds of the de- 
positor in the hands of the bank to meet the note when it should 
be due.* 

Of course securities may by express agreement be pledged to 
cover debts not matured or contingent liabilities ; B but such a lien 
is a different thing from a banker's implied general lien. 

But ordinarily equity follows the statute and the law in regard 
to a set-off, unless there are peculiar circumstances presented. 
The insolvency of a debtor sometimes moves equity to grant a 
setoff which would not be allowed at law ; and that consideration 
doubtless much moved the court in the Virginia case above cited. 4 

247. If a customer keeps several deposit accounts with a 
bank, they are to be regarded as one account as regards the 
bank's right of lien. Thus, if a customer, as a matter of conven- 
ience, keeps with a bank three accounts, namely, a loan account, 
a discount account, and a general account, and becomes a debtor 

1 Per Folger, J., in Jordan u. Nat. Shoe ' Merchants' Bank of London c. Maud, 

& Leather Bank, 74 N. Y. 467, 30 Am. 19 W. B. 657. 

Bep. 319. * Jordan e. Nat. Shoe ft Leather Bank, 

* Ford v. Thornton, 3 Leigh, 695. See 74 N. Y. 467, SO Am. Bep. 319, per Fol- 

Founh Nat. Bank ■>. City Nat Bank, 63 ger, J. 
IU.39S. 

170 



3igitiz eC by GOOgk 



NATUBK AMD EXTENT 0?. ['§ 248. 

to the bunk on one account, the bank has a lien for the debt upon 
the customer's balance upon another account. 1 " In truth," said 
Lord Justice James, " as between banker and customer, whatever 
number of accounts are kept in the books, the whole is really but 
one account, and it is not open to the customer, in the absence of 
some special contract, to say that the securities which be deposits 
are only applicable to one account." Of course this rule applies 
only where all the accounts belong to the depositor in the same 
capacity. 

A bank discounted for a customer bills of exchange drawn 
against goods consigned to India upon the security of the bills of 
lading. As a further security against a fall in the price of the 
goods, the hank retained a sum from the fnll discount value of 
the bills, and carried this to a suspense account until it should 
receive advice of the payment of the bills, and gave to the cus- 
tomer accountable receipts for such margins or sums retained. 
This was the usual course of dealing between the parties ; and it 
was also the habit of the bank, when it bad been advised that the 
bills bad been paid in full, to carry over the retained margin to 
the credit of the customer in his general banking account. The 
customer pledged three of snch receipts with a party who gave 
notice to the bank of snch assignment. On the same day the cus- 
tomer suspended payment, being largely indebted to the bank 
upon an overdrawn account and on suspended accounts. It was 
held that the bank was entitled to a lien on the receipts for snch 
margins or suspended account for such suras as were actually due 
and payable to it at the times when the receipts became payable, 
in respect of liabilities contracted before notice was received by 
the bank of the pledge or assignment of the receipts. 9 

248. As a general rule the lien attaches only to securities 
belonging to the customer in his own right, unless the securi- 
ties be transferable by delivery, or have been intrusted to the 
customer by the owner in such a way that he appears to be the 
owner, and has the power of transferring them as if they were bis 
own ; in which case the banker receiving the securities in good 
faith may acquire a title which the customer did not have.* If 

1 la re European Bank, L. B. 8 Ch.41. ' Barneit v. Brandao, 6 M. ft Q. 630, 

1 Jeffryes p. Agra ft Haslerman'i Bank, 668, per Lord Desman, C. J. ; Collin* v. 

L B. a Bq. 67*. 35 L. J. If. g. Ch. 686, Martin, 1 Bos. & Ptii. 648. 

14 W. B. 889. 

1T1 



- ;: >a, y Google 



§ 249, 250.] BAHKKBS' LIENS. 

the property is subject to a trust, of which the banker must neces- 
sarily have notice, or of which he actually has notice, the trust 
must prevail against the banker's lien. 1 

If a depositor keeps two accounts, one of which is a trust 
account, the bank can acquire no lien on the latter account for a 
deficiency in the individual account. If the banker has know- 
ledge of this, he is liable for permitting the customer to transfer 
money from his trnst account to bis private account. 8 A banker 
lias no lien on the deposit of a partner on his separate account for 
a balance due to the bunk from the firm. 8 

249. One cannot create an efieotual Ilea by an agreement 
to transfer to a bank securities which he holds in trust, 
though they stand in hia own name and are within his control. 
The agreement to transfer does not amount to the same thing 
as an actual transfer, so far as the rights of the beneficial owner 
are concerned ; for the bank will not have a lien by the agree- 
ment as against anch owner. Thus, one holding shares in a 
banking company in his own name, though part of them were 
purchased with trust funds, and were in fact held in trust, agreed 
to transfer a certain number of shares to the banking company 
as security for advances; but no transfer was actually made, 
and he became bankrupt without having shares sufficient to 
satisfy the trust and his agreement to assign. It was held that 
the banking company had no lien on the shares held in trust.* 
Referring to the trustee's agreement to transfer. Lord Cotten- 
ham. Lord Chancellor, said : " All that he has done has been an 
attempt to commit a breach of trust, and a fraud, undoubtedly, 
on the bank, by Baying, 'I will pledge these shares so standing 
in my name for the purpose of securing the debt which I owe to 
you.* Then here are two equities, that is to say, here is a trustee 
of the property, which he held for the benefit of the cestui* que 
trust, endeavoring to create an equity upon that property to 
secure his own debt. Which of these two equities is to prevail 1 
Undoubtedly the former." 

260. A bank receiving deposits to the account of a cus- 
tomer, as executor, administrator, trustee, or agent, is oharge- 

1 Mnnningford p. Toleman, 1 Coll. 670; Ex parte City Bank Case, 3 De G., F. * J. 

Locke v. Prcscott, 32 Beav. 261. 629; Raymond t>. Pnlmer, 41 La. Ann. 

9 Bodenham v. Hoakyni, !Doll.,M.4 495, 6 So. Rep. 691. 

G. 903. * Murray ». Pinkett, 18 CI. * F. 764, 

■ Watts v. Christie, 11 Beaver, 5*6; 785. 

172 



3igitiz eC by GOOgk 



NATUEE AND EXTENT OF. [§ 250. 

able -with notice of the trust, and cannot hare a lien upon the 
deposits to secure bis private debts to the bank. 1 If the bank 
officers have actual knowledge that the money deposited by a 
customer is held by him in a fiduciary capacity, the bank for 
stronger reasons is affected with equities of the beneficial owners 
of the fund. Thus, where a customer opened an account with a 
bank in his own name, as general agent, and it was known to 
the bank that be was the agent of an insurance company; that 
the conducting of this agency was his chief business; that the 
account was opened to facilitate that business, and was used as 
a means of accumulating the premiums on policies collected by 
him for the company, and of making payments to it by checks, 
the bank is chargeable with notice of the equitable rights of 
the company, though he deposited his own money to the same 
account and drew checks against it for bis private use. There- 
fore, when such depositor borrowed money from the bank for 
his own use upon the security of his wife's name and property, 
and the loan not being paid it was charged to the depositor's 
account as general agent, it was held that the bank had no lien as 
against the insurance company on such deposits. 3 Mr. Justice 
Matthews, delivering the opinion of the court, said : "Evidently 
the bank has no better right than the depositor, unless it can 
obtain it through its banker's lien. Ordinarily, that attaches 
in favor of the bank upon the securities and moneys of the cus- 
tomer deposited in the usual course of business, for advances which 
are supposed to be made upon their credit. It attaches to such 
securities and funds, not only against the depositor, but against 
the unknown equities of all others in interest, unless modified or 
waived by some agreement, express or implied, or by conduct 

1 Bailey t>. Finch, L. R. 7 Q. B. 34, 41. ' National Bank »■ Insurance Co. 104 

Blackburn, J., Mud that the opening of an U. S. 94. The existence ot this account 

scrouot as executor operated as anoiice to ai a proBlabloone to the bank was alleged 

the bank of the trait, it being a statement bj tbe customer ai a reason why he should 

to the bank : " Thii account which I am bare the accommodation ; but it wat not 

opening is not mj own unlimited property, pledged for the payment of t ha loan, either 

but it is money which belong! to the estate in express terms, or by any act* or conduct 

which I am aiirainUioring m executor ; from which such an intention could be 

cnneequfintly, there may be persona who inferred. But, as against the insurance 

haie equitable claims upon it" The bank company, it could hare made no difference 

would be bound by any equity which did if the depositor had attempted to pledge 

exist in another. And see Jones on his account; for the bank bad notice that 

Pledges, I 474. this did not belong to him. 
178 



* Google 



§ 251.] bankers' LIENS. 

inconsistent with its assertion. But it cannot be permitted to 
prevail against the equity of the beneficial owner, of which the 
bank has notice, either actual or constructive. In the present 
case, in addition to the circumstance that the account was opened 
and kept by the depositor in hia name as general agent, and all 
the presumptions properly arising upon it, we have found that 
other facts proven on the hearing justify and require the conclu- 
sion that the bank had full knowledge of the sources of the de- 
posits made by the depositor in this account, and of his duty to 
remit and account for them as agent for the insurance company. 
It is, consequently, chargeable with notice of the equities of the 
insurance company." 

261. A banker or broker holding securities pledged for the 
payment of a particular debt, or deposited for a special purpose, 
has no lien upon them for a general balance of account or for the 
payment of other claims. 1 The general lien is limited and de- 
fined by the express contract. Thus, if a partnership and an indi- 
vidual member of the firm have accounts with the same bank, 
and the partner deposits certain railway shares as collateral secu- 
rity for a certain promissory note of his own discounted by the 
bank, or for any Bums he may thereafter owe to the bank, the fact 
that the shares were the property of the firm, and that the dis- 
counts obtained by the use of them were employed for the pur- 
poses of the firm, does not entitle the bank to hold the shares as 
a security for a balance due him from the firm. 3 

> Vflniienee v. Willis, a Bro. Ch, 31 ; into by which the shares were not to be ■ 
In re Medewe's Trait, 26 Bear. 388 ; In security for the separate debt of the part- 
re Qtois, 24 L. T. N. S. 198 ; Armstrong ner, and were to he a security for the joint 
v. Chemical Nat. Bank, 41 Fed. Rep. debt of the partnership." Turner, L. J., 
334] Revues e. Dumont, 130 U. S. 354, 9 referring to the argument that the shares 
Sup.Ct. Rep. 486. Massachusetts : Brown hating become the property of the part- 
v. New Bedford Inst, for Savings, 137 nership, the pledge mnet be taken to have 
Mas*. 363 ; Hathaway v. Fall River Nat. been on the joint and not on the separata 
Bank, 131 Mass. 14; Jnrvis c. Rogers, 19 account, said that it was untenable: "First, 
Mass. 389, Saw York : Line v. Bailer, that it disregards the fact that one of the 
47 Barb. 395 ; Wyckoff v, Anthony, 90 parties to the contract, the bank, did not 
N. Y. 413, affirming 9 Daly, 417; Dsvcn- oven know of the partnership title, and 
port v. Bank of Buffalo, 9 Paige, 13. Kan- dealt with the transactional a transaction, 
ttuay: Woolley v. Louisville Banking Co. on the separate account; and, secondly, 
81 Ky. 637. that it disregards also the distinction he- 

* Ex parte City Bank Case, 3 DeG., F. tween the rights and liabilities of the p*t- 

k J. 639. Lord Campbell, L. C.i "It ties to the contract, and the extent of the 

cannot be said that a contract was entered contract itself." 

174 



jipismb, Google 



NATURE AMD EXTENT OF. [§ 252. 

A customer of a bank deposited with it as security for his oar- 
rent indebtedness on discounts the note of a third person secured 
by mortgage, and afterwards withdrew the same {or the purpose 
of foreclosure and collection, under an agreement to return the 
proceeds or to furnish other securities. He purchased the mort- 
gaged property at the foreclosure sale, and at the request of the 
bank deposited with it the deed of the property. His indebted- 
ness to the bank was afterwards fully paid, and for a time he had 
no dealings with it. Afterwards he incurred other debts to it, 
and was largely indebted to it when he became a bankrupt. It 
was held that the bank bad no equitable lien on the property 
mentioned in the deed. 1 

Thus, also, where a deposit was made in a bank for the express 
purpose of paying coupons which had been made payable at the 
bank, it was held that the bank having accepted the deposit, 
knowing the purpose for which it was made, could not retain the 
money and apply it to a prior indebtedness of the depositor on 
another account. 3 

262. Surplus of pledged securities. — Where, however, the 
bankers have the right to Bell the security pledged for a specified 
debt, after they have exercised this right, and have in their 
hands a surplus of money remaining after satisfying the specific 
charge, they may set off this money against further sums due to 
them. 3 

But before a sale, and while the security is held with a mere 
power of sale, which the debtor or his assignee may defeat, and 
which the bankers bad not even signified their election to exer- 
cise, the bunkers are not in a position to set off the debts due 
them against the surplus proceeds of the securities which might 
arise in case they should sell them nnder the power. 1 

Where a customer deposited a life insurance policy with his 
bankers, accompanied by a memorandum of charge to secure over- 
drafts, not exceeding a specified amount, it was held that the 
bankers' general lien was displaced, and the charge was limited 
to the amount specified. The court regarded it as inconsistent 
with the terms of the agreement, that the bankers should claim 

1 Railroad Co. ■>. McKinlay, 99 U. S. Judy p. Farmers' & Tinders' Bank, SI Mo. 

147. 40*. 

* Bank of tbo United States v. Mac- * Brown r. New Bedford but. for S»r- 

llrater, 9 Pa. St. 478. toga, 137 Mau. 362. 

1 J one* p.Peppercorne, Johns. Ch.430 ; 

175 



jipismb, Google 



§§ 253-255.] bankers' liens. 

a general lien under an implied contract, when by the express 
contract the charge was limited to a stipulated sum. 1 

253. If a lien is given to bankers by expreas contract, the 
nature and extent of the lien depend upon the terms of the 
contract. Thus, where an agreement was made by a contractor 
about to furnish certain manufactured articles to the govern- 
ment, that advances, to be made by a bank to enable him to 
fulfil bis contract, should be a lien on the drafts to be drawn by 
him on the government for the proceeds of the articles manu- 
factured, it was held that the bank had no lien on a judgment 
obtained against the government for damages for violation of the 
contract, all the drafts drawn upon the government for the arti- 
cles manufactured and delivered having been paid in full to the 
hank. 8 

264. Bankers have no lien on a box containing securities 
deposited with them by a customer for Bate keeping, he keep- 
ing the key and having access to the box, and the bankers not 
having access to the contents of it. 8 The same rule would apply 
to securities left with a banker for safe keeping in a sealed-up 
parcel ; 4 and to a box of plate deposited in the bank vaults for 
safe custody. 6 

266. There oan be no lien where the securities have oome 
into the banker's hands under ciroumstanoes inconsistent 
with the existence of a general lien. A Portuguese merchant 
residing in Lisbon employed his correspondent, a merchant in 
Loudon, to invest money for him in exchequer bills. The latter 
purchased the bills and deposited them in a box that he kept at 
his bankers*, the key of which he himself retained. Whenever it 
became necessary to receive the interest on the bills and to ex- 
change them for new ones, the London merchant was in the habit 
of taking tbem out of the box and giving them to the bankers 

1 Stmtbmore tr. Vane, 33 L. R. Ch. D. thai a security given by a cnilomer to hi* 

586. To like effect sea Wjlde v. Radford, bankers for the balance " which »hall or 

33 L.J. (Ch.) 61,12 W. II. 38, 9 Jar. N. S. may be foond doo on tha balance of " the 

1169, which cannot be distinguished, ex- account, covered the existing account only, 

W|>t that in the latter caie tbe security w» and not a floating balance. 
limited to a part of the property included " Bank of Washington n. Nock, 9 Wall. 

in tbe deposited deed*, and in Straihmoro 373. 

v. Vane the security wu limited W corer * Leese r. Martin, L. R. 1 7 Eq. 2S4. 
a part only of the debt. See, alio, la re « Per Hall, V. C, in Leem o. Martin, 

Mcdewe'* Trait, S6 Bear. SSS, 5 Jur. N.& L. R. 17 Eq. S34. 
121, 28 L. J. Cb. 891, where It vu held * Ex yailt Eyre, 1 Ph. 237, 23ft. 
176 



3igitiz eC by GOOgle 



NATUBE AND EXTENT OP. [§ 256. 

for that purpose ; and when such purpose was accomplished, aa 
soon ae conveniently might be, the bankers handed them or the 
new bills back to their customer, who locked them up in the box. 
The amount of interest received by the bankers was passed to the 
credit of the customer. The bills themselves were never entered 
to his account, nor had the bankers any notice or knowledge that 
they were not the customer's own property. Finally tiie customer 
delivered the exchequer bills to the bankers for the purpose of 
receiving the interest and exchanging them for new bills; but 
after the exchange, on account of the customer's illness, the new 
bills remained in the possession of the bankers for some two 
months, and until the customer's failure, he having in the mean 
time considerably overdrawn his account. In a suit by the true 
owner of the bills against the bankers, it was held in the House 
of Lords that they bad no lien for the general balance of their 
account upon the securities, although these were transferable by 
delivery. 1 Lord Lyndhnrst, Lord Chancellor, said : " It is impos- 
sible, considering how this business was carried on, that we can 
come to any other conclusion than this, that it was the under- 
standing between the parties that the exchequer bills were to be 
returned after the interest was received, or after they were ex- 
changed. If so, and that was the understanding, — the fair infer- 
ence from the transaction, — it is quite clear that there could be 
no lieu, and that the case does not come within the general rule. 
. . . Although, from the accidental circumstance of the illness of 
the customer, these exchequer bills happened to remain for a 
longer period in the bauds of the bankers than was nsual, that 
accidental circumstance alone will not vary the case, or give the 
bankers a lien, if, under other circumstances, that lien would not 
have attached." Lord Campbell concurring, on another point 
said : " No reliance, I think, can be placed on the circumstance of 
the interest received on the old exchequer bills going to the credit 
of the account of the customer; for, while he gives the bankers 
the interest to keep for him with one hand, he locks up the new 
exchequer bills in his tin box with the other." 

256. A banker has no lien on securities casually left with 
him after he has refused to advance money on them. In 
a leading case on this point, a person went to a banker to raise 

i Brandio v. Burnett, 3 Com. B. 919, IS Scott, N. R. 96. See, tin, Gnnt ». T»j- 
Cl. & F. T8T, overruling 1 H. & 0. 90S, 9 lot, 9 J. & 8. S38. 
VOL. I. 13 X77 



;y Google 



§ 257.] bankers' liens. 

a certain sum of money on the security of a lease. The banker 
considered the proposition and rejected it. Bat the lease, in the 
language of the report, was "casually left" in the possession of 
the bankers, and the bankruptcy of the owner of the lease hav- 
ing afterwards happened, the bankers claimed they were entitled 
to hold this lease by virtue of a banker's lieu upon it. The 
court held that there was no lien upon the lease. 1 

II. Application of the Lien at between Corresponding Banks. 
257. A bank haa a lien on paper received for collection 
from a corresponding bank, although it is not the property of 
that bank, if there be nothing on the face of the paper and no 
notice in any way to the collecting bank that the paper does not 
belong to the bank that transmits it. In a leading case before 
the Supreme Court of the United States, it appeared that two 
banks were in the hahit of transmitting to eacli other paper for 
collection. They had for several years an account current be- 
tween them in which they mutually credited each other witli the 
proceeds of all paper remitted for collection which appeared to 
be the property of the respective banks. One bank transmitted 
to the other certain paper, indorsed by the bank which sent it, 
•and apparently belonging to it, for collection. The bank which 
* received the paper collected it, and held, the proceeds, when the 
bank which had transmitted it proved to be insolvent, and in- 
debted to the other bank. The paper in fact belonged to a third 
bank, which brought suit against the collecting bank for the pro- 
ceeds of the paper. The Supreme Court held that the bank which 
had collected the paper, in the absence of knowledge or notice of 
facts to put it upon inquiry that the -paper did not belong to its 
correspondent, had the same right of lien for a general balance 
of account upon the paper and its proceeds that it would have 
bad if the paper had actually belonged to its correspondent. 1 
The court said that the plaintiff bank contributed to give to the 
bank which proved insolvent credit with the defendant bank, by 

l Lucas c. Dorrien, T Taunt. 278, 1 duck, 8 111. 233, 44 Am. Dec 693 ; Gor- 
Moore, SB, See, also, Burnett c. Bran- don p. Kearney, 17 Ohio, S72; Millet c. 
d»A), 6 Man. & Gr. 630; Peine v. Mjera, Farmers' and Mechanics' Bank, 30 Md. 
S4 How. Pr. S13. 393. See, also, Hoffman v. Miller, 9 

' Bank of Metropolil v. New England Boaw. 334; Van Names v. Bank of Troy, 
Bank, 1 How. 334; affirmed 6 How. 919, S How. Vr. 161. 
17 Pel. 174; followed in Russell v. Had, 
178 



3igitiz eC by GOOgle 



APPLICATION AS BETWEEN CORRESPONDING BAKES. [§§ 258, 259. 

placing in Its hands paper which was apparently the property of 
the insolvent bank; thus enabling this bank to deal with the 
paper as if it were the real owner of it. The defendant bank, 
on the other hand, was not in any way responsible for the con- 
fidence which the plaintiff bank reposed in its agent. The 
superior equity is on the side of the defendant bank, which is 
entitled to a lien for a general balance of account with its cor- 
responding bank. 

258. Same subject continued. — A similar case was de- 
cided in like manner by the Supreme Court of Colorado, 1 It 
appeared that a customer of a banker drew his draft on London, 
payable to the banker, to whom he delivered it to collect and 
place to the customer's account. The banker indorsed and trans- 
mitted the draft to a national bank for collection. At this time 
the banker was indebted to the national bank for over-drafts. 
The draft was paid, but before the proceeds came into the actual 
possession of the national bank, it received notice that the drawer 
of the draft had delivered it to his banker for collection, and that 
he claimed the proceeds. In a suit by the drawer against the 
national bank, it was held that he could not recover ; but that 
this bank bad a lien upon the proceeds for a balance of account 
against tbe banker from whom the bank received the draft. The 
bank received the draft without notice of the equities between 
the original parties, and thus became a bond fide holder of the 
draft for value. 3 

The possession of the paper by the bank transmitting it is re- 
garded -hs primd fade evidence that it owned the paper ; and the 
bank receiving it, having no notice to the contrary, is entitled ao 
to treat it. 

259. This doctrine does not apply in New York, because 
under the rule established in Coddington v. Bay, 8 the taking of 
paper as security for, or in payment of, an antecedent debt, ia not 
a valuable consideration therefor, and therefore a collecting bank 
not making any present advance upon the paper, or giving any 
new credit, or assuming any new responsibility on the faith of 

1 Wyman v. Colorado Nat. Bank, 9 Merchants' Ban*, 3 N- Y. 3M0 ; Sweeny v. 
Colo. 30, 40 Am. Hep. 133. Easter, 1 Wall. 166. 

1 In lupport -of this rule see Clark v. ' 20 Jotuu. 637, 40 Am. Dec 343, 
179 



3igitiz eC by GOOgk 



§ 260.] barkers' liens. 

such paper, has no Hen upon it for a balance of account arising 
from previous dealings between the banks. 1 

Where two banks set as collecting agents for each other, keep- 
ing a running account and settling balances at stated intervals, 
the collections not being kept separate from other funds of the 
bank, the relation between the banks is simply that of debtor 
and creditor. The creditor bank acquires no lien upon any spe- 
cific fund, and, upon the failure of the debtor hank, is not entitled 
to any preference over other creditors. 8 

260. If a bank receives paper "for collection" from a 
corresponding bank, or with other notice tbat the paper does 
not belong to the latter, but that it is sent for collection for the 
account of a third person, such banker cannot retain the paper 
or its proceeds to answer a balance owing by the corresponding 
banker. If the corresponding banker indorsed the paper "for 
collection," the negotiability is thereby limited to that purpose, 
and, notwithstanding the rule that one who has placed bis name 
on negotiable paper shall not afterwards be allowed to impeach 
the instrument, the banker who has indorsed paper for collection 
is competent to prove that he was not the owner of it, and did 
not mean to give title to it or to its proceeds when collected. 1 

Tbe fact that a banker received the paper, with knowledge 
that it was indorsed for collection only, may appear otherwise 
than by au indorsement in terms for collection only. Sucli 
knowledge may be shown by any competent evidence. If the 
paper be indorsed in blank, and sent to a banker with a letter of 
instructions, in which it is stated that the paper is sent for col- 
lection, the banker is not an assignee of the paper, but merely 
an agent for its collection, and cannot hold the paper or its pro- 
ceeds for a general balance of account due from the correspondent 
who sent it, and who was also an agent for collection. 1 

1 McBrida d. Farmers' Bank, IS N. Y. And see Bank of the Metropolis v. New 

4S0. And see Lindaner v. Fourth Nat. Eng, Bank, 6 How. SIS. 
Bank, 65 Barb, 7»; Dod v. Fourth Nat * Lawrence v. Stoaington Bank, 6 

Bank, 59 Barb. 265. Conn. SSI. The authorities relied upon 

As to the rule in Coddington v. Bay, in thie case are Barker v. Plenties, B 

SO Johm. 637, 40 Am. Dec 312 ; see Jones Mess, 430; Herriuk v. Carman, 10 Johns, 

on Pledges, §5 117-123. 224. Chief Justice Hosmer, giving (he 

' People t>. City Bank of Rochester, 93 opinion, said : " The custom of transmit- 

N. T. 582. ting bills for collection from one bank to 

* Sweeny n. Easter, 1 Wall. 166 ; Cecil another, and crediting in account the 

Bank v. Farmers* Bank, 22 Mil. 146. araits received, whatever effect it may 
180 



y, Google 



APPLICATION AS BETWEEN COBBESPONDING BANKS. [§ 261. 

A banker's lien is sustained in such case upon the presumption 
that credit was given upon the faith of the securities, either in 
possession or in expectancy. If the banker has knowledge of 
circumstances which should put a prudent man upon inquiry as 
to the title of the securities, he is affected with notice of such 
facts as the inquiry would lead to. 1 

261. The collecting bank oannot, however, maintain a lien, 
if it has made no advances and given no credit to the corre- 
sponding bank on account of the paper received and collected. 
Where a bank employed to collect paper transmits it to another 
bank, either by express authority or under authority implied 
from the usual course of trade, or from the nature of the transac- 
tion, the principal may treat the latter bank as his agent, and, 
when it has received the money, may recover it in an action for 
money had and received. 3 Where there is no mutual arrange- 
ment between corresponding banks, or previous course of dealing 
between them, whereby it is expressly or impliedly understood 
that remittances of paper are to be placed to the credit of the 
remitting bank, or where there is no credit given upon the faith 
of the particular paper remitted, or of the usual course of dealing, 
the collecting bank has no lien upon the money collected in that 
manner; and the owner of the bill or note remitted for collection, 
through his banker, may recover the amount, although the collect- 
ing bank has placed the amount to the credit of the correspond- 
ing bank in payment of a subsisting indebtedness. 8 

hare between themselves, cannot affect * Wilson e. Smith, 3 How. T63. 

the claims of a third person, who tans con- ' Millikin r. Shspleigh, 36 Mo. 596, 88 

fided the collection of a bill to one of them, Am. Dec 171. And see, also, Dod v. 

without auent, either express or implied, Fourth Nat. Bank, 59 Barb. 865 ; Lin- 

to the mode of transacting iheir business." dauer v. Fourth Nat Bank, 55 Barb. 75. 

1 Russell v. Haddnck, 8 111. 233, 44 Am. 
Dec 693. 

181 



3igitiz eC by GOOgk 



CHAPTER VII. 



CARREERS LIENS. 

I. Are specific, not general, 262-268. I V. On stolen goods, 303-307. 
II. In whose furor the; attach, 269-290. VI. Waiver or loss, 308-334. 

III. For what the; attach, 381-290. VII. Remedies, 335-374. 

IV. On through freight, 291-302. | 

I. Are Specific, not General. 
262. A common carrier has a particular or specific lien 
upon the goods carried for his hire in carrying them. 1 He is 
invested with this peculiar privilege, it is said, on account of his 
obligation to receive and carry any goods offered, and his liabil- 
ity for their safety in the coarse of transportation. 2 He is neces- 
sarily in possession of the goods, and, at the end of the journey, he 
is allowed to retain possession until he receives a reasonable remu- 
neration for bis services. The carrier's right to retain the goods 
until be is paid for bis services is bis lien. This right is merely a 
right of possession. The property is necessarily supposed to be in 
some other person. One cannot have a Hen upon his own prop- 
erty. The lien confers no right of property. It does not enable 
the carrier to sell the goods, except as he is authorized to do so 
by some modern statute, even though the keeping of them be 
attended with expense and inconvenience. 8 The lien merely con- 



> Skinner e. Upehaw, 2 Ld. Raytn. 752 ; 
Giabonrn ». Hunt, 1 Salk. 249 ; Middle ton 
d. Fowler, 1 Salk. 282; The Bird of Para- 
diie,5 Wall. 545; Ames v. Palmer, +2 Me, 
197, 66 Am. Dec 371; Wilson v. Grand 
Trunk Ry. Co. 56 Me. «0, 96 Aid. Dee. 
435 ; Sullivan v. Park, 33 Me. 438 ; Hunt 
u. Haskell, 24 Me. 339, 41 Am. Dec 367 ; 
Finney v. Wells, 10 Conn. 104, 115; Ga- 
lena & Chicago Union R. R. Co. o. Rae, 18 
III. 488, 68 Am. Dec. 374; Clarkson v. 
Kdes, 4 Cow. 470; Lang worthy v. N. Y, 

182 



ft Harlem R. R. Co. 2 E. D. Smith. 195 ; 
Barker p. Havens, 17 Johns. 234, 8 Am. 
Dec. 393; Rucker o. Donovan, 13 Kaus. 
251, 19 Am. Rep. 84; Brown e. Clayton, 
12 Ga. 564, 566; Hoggs u. Martin, 13 B. 
Mon. 239; Goodman c. Stewart, Wright 
(Ohio), 216; Bowman v. Hilton, 11 Ohio, 
S03. 

' Per Holt, C. J., in Torke v. Grcnaugh, 

2 Ld. liajiii. 866, per Lord Ellen bo rough, 
in Kushforth v. Hadfield, 6 East, 519. 

* See §§ 335-374. 



3igitiz eC by GOOgk 



ARE SPECIFIC, NOT GENERAL. [§§ 268, 264. 

fera a right of possession until the charges for carriage are paid. 
This right avails against the true owner of the goods, though some 
one else be liable for the freight, unless they have been shipped in 
fraud of the owner. 1 

263. As regards the origin of this lien and the reasons for 
its existence, it does not seem necessary to go beyond the com- 
mon law principle that a bailee of goods who alters or improves 
their condition is entitled to a lien on them for his compensation. 
The reason assigned for the existence of the Hen, that carriers 
are bound to carry for any persons who may require them to do 
so, does not apply to carriers by water, who, nevertheless, have 
a lien for carrying goods. This lien for the freight of goods car- 
ried by sea does not depend upon any peculiar maritime law or 
custom. It is a common law lien as much as is the lien given 
to carriers by land ; and the common law principle which lies at 
the fonndation of most common law liens is sufficient to justify 
the lien of carriers by land, and carriers by water as well, 

264. In several States the carrier's lien is declared by 
statute. The statutes of these States differ much in the terms 
in which the lien is declared. Some of them materially change 
the common law rules, and therefore it seems important to give 
a synopsis of these statutes. 

In California,* North Dakota, and South Dakota a every per- 
son who, while lawfully in possession of an article of personal 
property, renders any service to the owner thereof, by labor or 
skill employed for the protection, improvement, safe-keeping, or 
carriage thereof, has a special lien thereon, dependent on posses- 
sion, for the compensation, if any, which is due to him from the 
owner for such service. 

In Colorado * and Wyoming 6 every common carrier of goods or 
passengers who shall, at the request of the owner of any personal 
goods, carry, convey, or transport the same from one place to 
another, and any warehouseman or other person who shall safely 
keep or Btore any personal property, at the request of the owner 
or persons lawfully in possession thereof, shall in like manner 
have a lien upon all such personal property, for his reasonable 
charges for the transportation, storage, or keeping thereof, and for 

1 Robinson K, Baker, S Cuih. 137, SI * Annot. Stats. 1891, J 2855. 

Am. Dec. 54. ( H. S. 1887, § 1*71. 
1 C!t. Code, g 3051. See, also, § 2144. 
' (St. Code, g 1806. 183 



* Google 



§ 264.] carriers' lienb. 

all reasonable and proper advances made thereon by him in accord- 
ance with the usage and custom of common carriers and ware- 
housemen. 

In Georgia 1 a carrier has a lien lor freight upon the goods 
carried, and may retain them until the freight is paid. But such 
lien does not arise until the carrier has complied with his contract 
as to transportation. He can, however, recover pro rata for the 
actual distance the goods are carried, when the consignee volun- 
tarily receives the goods at an intermediate point. 

In Iowa 3 personal propenty transported by, or stored or left 
with, any warehouseman, forwarding and commission merchant, 
or other depositary, express company, or carriers, is subject to a 
lien for the just and lawful charges on the same, and for the 
transportation, advances, and storage thereof. 

In Louisiana 8 carriers' charges and the accessory expenses are 
a privilege on the thing carried, including necessary charges and 
expenses paid by carriers, such as taxes, storage, and privileged 
claims required to be paid before moving the thing. 

In New Mexico 4 common carriers have a lien on the things 
carried for the freight due, if payment of freight was to have 
been made on delivery^of the things carried. All persons car- 
rying goods for hire or pay are deemed common carriers. 

In Minnesota 6 and Oregon B any person who is a common car- 
rier, and any person who, at the request of the owner or lawful 
possessor of any personal property, carries, conveys, or transports 
the same from one place to another, and any person who safely 
keeps or stores any personal property, at the request of the owner 
or lawful possessor thereof, shall have the same lien and the same 
power of Bale for the satisfaction of his reasonable charges. 

In Utah Territory T all common carriers have a lien upon any 
goods, wares, merchandise, or other property in their possession, 
as such carrier, for freight or transportation thereof, including 
back charges paid by such carriers to connecting lines. 

The liens of carriers are also in other States either expressly 
or incidentally recognized in the statutory provisions authorizing 
the sale of goods by carriers, and the satisfaction of their charges 
out of the proceeds. 

l Code 1882, §§ 2077, 1986. • Camp. Laws 1884, S3 1547, 1MB, 1543, 

1 B. Code 1880, $ 2177. 1544. 

* Rev. Lawi 1884. § 2873. * G. 8. 1891. § 4316. 

• AnnoL Laws 1892, £ 3634. 
184 I Comp. Laws 1888, £ S958. 



* Google 



ABE SPECIFIC, NOT GENERAL. . [§ 265. 

266. The carrier's lien is a particular or specific lien, 
attaching only to the specific goods in his possession, and in 
general secures only the unpaid price for the carriage of those 
specific goods. 1 It is only by express agreement, or by an 
agreement implied from the general usage oE trade, or from pre- 
vious dealings between the same parties, that his lien can be 
extended to cover hia general balance of account. 1 The claim of a 
lien for a general balance is not encouraged by the courts. 8 Such 
usage must be proved by clear and satisfactory instances, suffi- 
ciently numerous and general to warrant a conclusion affecting 
the custom of the country. A few recent instances of such a 
usage will not serve to establish the requisite proof of it. 4 Thus, 
proof of instances of such a usage by carriers in a particular part 
of the country for ten or twelve years, and in one instance so far 
back as thirty years, though not opposed by other evidence, was 
regarded by the King's Bench as insufficient to establish a gen- 
eral usage. Lord Ellenborough, referring to the evidence in this 
case, said : 6 "In many cases it would happen that parties would 
be glad to pay small sums due for the carriage of former goods, 
rather than incur the risk of a great loss by the detention of 
goods of value. Much of the evidence is of that description. 
Other instances, again, were in the case of solvent persons, who 
were at all events liable to answer for their general balance. 
And little or no stress could be laid on some of the more recent 
instances not brought home to the knowledge of the bankrupt 
at the time. Most of the evidence, therefore, is open to obser- 
vation. If, indeed, there had been evidence of prior dealings be- 
tween these parties upon the footing of such an extended lien, 
that would have furnished good evidence for the jury to have 

1 Batter v. Woolcott, 9 B. & P. N. ] 

64 ; Hartshorne r. Johnson, 7 N. J. '. 

I OS ; Leonard v. Window, 8 Grant, 139. It. 14. 

1 Rushforlh i>. HadGeld, 6 East, 519, ' RnsbfoHb ». Had field, 7 East, 224, 3 
TEatt,344,28mith,634; Wright u. Snell, Smith, 221. The words of Lord Ellen- 
SB. & A. 350; Pennsylvania It. It. Co. b. borough seem to imply his opinion tliat 
Am. Oil-Works Co. 126 Fa. St. 485, 17 notice of the usage to the party denling 
Ail. Rep. 671. with a carrier mifiht create a general lien; 

* Holdernesa v. Collinson, 7 B. & C. but in the same case Gone, J-, said : " I 

812 ; Aspinirall a. Pickford, 3 Bos. & Pn). take it to be sonnd law that no such lien 

44, n. can exist except by the contract of the 

. * Hnihforth o. Had field, 6 East, 519, S parties, express or Implied." 
Smith, 634; Whitehead t>. Vaughan, 6 

185 



y, Google 



§ 266.] carriers' liens. 

found that they continued to deal upon the same terms. But 
the question for the jury here was, whether the evidence of a 
usage for the carriers to retain for their balance was so general 
as that the bankrupt must be taken to have known and acted 
upon it? And they have in effect found either that the bank- 
rupt knew of no auch usage as that which was given in evidence, 
or, knowing, did not adopt it." 

No usage can enable the carrier to retain the goods as against 
a consignee to whom they belong, for debts due him from the 
Bhipper. 1 

266. A oondition or provision in a contract giving the 
carrier a general lien must be clearly brought home to the 
knowledge of the customer. It seems proper that the carrier's 
right to create a lien for his general balance should be restricted 
in the same way that hia right to limit his common law liability 
is restricted ; that is to say, it should be incumbent upon the car- 
rier, in case he attempts to make any change from the usual mode 
of dealing, to bring home to his customers such notice or know- 
ledge of the change as warrants the implication of a contract to 
that effect. An agreement by a trader with a railway company 
providing for a general lien does not apply, after the trader's 
failure, to goods sent to the company by a receiver and manager 
appointed to carry on the trader's business in liquidation ; and if 
Buch receiver, in order to obtain a delivery of such goods, pays 
under protest a prior indebtedness of the trader to the company, 
the company is liable in a proper action for the repayment of the 
amount so paid. 3 

If the carrier demands a further sum besides the freight, or 
any charge connected with the carriage of the goods, and re- 
fuses to deliver them unless such further sum is first paid, the 
consignee, who is ready to pay the freight, is not bound to ten- 
der this to the carrier before bringing trover. The carrier's re- 
fusal to give up the goods, except upon receiving a payment he 
had no right to demand, is evidence of a conversion. 

rler cannot seize goods while in transit for a 



» Wright v. Snell, 5 B. & Aid. 350; ' Adams v. Clark, 9 Cash. 215, 57 Am. 

Leuckhart v. Cooper, 3 Hinp, N. C. 99; Dec. 41. The further sum demanded by 

Butler ii. Woulcutt, 2 li. & P. N. K. G4. the carrier in this case was for the passage 

1 Ex parte Great Western Ity. Co. L. of a third parly, the consignor's son, who 

K. 22 Cb. D. 4T0. accompanied the goodi. 

186 



3igitiz eC by GOOgk 



IN WHOSE FAVOR THEY ATTACH. [§§ 267-269. 

debt due himself wholly unconnected with the shipment. He 
cannot by his own act prevent himself from performing his con- 
tract, and then plead his own act as an excuse for not perform- 
ing it. 1 

267. A consignor's right of stoppage in transitu is not 
affected by an agreement for a general lien, such as a con- 
tract, express or implied, between the consignee of goods and 
the carrier, that the latter shall have a lien for a general balance 
of account. 3 A usage for carriers to retain goods, as a lien for a 
general balance of account between them and the consignees, 
does not affect the right of the consignor to stop the goods in 
transitu* 

268. But the owner of goods who stops them in transitu 
is bound by the carrier's specific lien, and cannot take the 
goods from him without first paying or tendering the freight 
thereon.* 

II. In whose Favor they Attach. 

269. This lion attaches in favor of a carrier of passengers 
to the luggage of a passenger, either to secure the payment of 
his fare, or charges for extra luggage. 6 Upon a railroad the lien 

1 Pharr v. Collins, 35 La. Ann. 939, 48 inch owner. The goods which by the ex- 
Am. R. 251. ercise of the right of stoppage become 

1 Wright ir. Snell, 5 B. 4 Aid. 350 ; those of the consignor cannot be made 

Potts b. N. Y. & N. E. ft. It. Co. 131 Mush, subject to a lien for the debt of the con- 

455, 41 Am. Rep. 347 ; Fnrrell v. Railroad aignee." Per Williams, J. 

Co. 102 N. C. 390,9 S.E. Rep. 302; Penn- * Oppcnheim d. Russell, 3 Bob. * P. 42, 

syh-ania R. R. Co. v. Am. Oil Works, 126 43 ; Jackson e. Nichol, 5 Bing. N. C. 508, 

Pa. St. 485, 17 Atl. Rep, 671: "When 518,7 Scott, 577, 591 ; Pennsylvania R. 

the consignor exercised his right of stop- R. Co. v. Am. Oil Works, 136 Pa. St. 485, 

page, the goods were deliverable to him, 17 Atl. Sep. 671 ; Hays v. Monille, 14 Pa. 

and the carrier's right of detention de- St. 48. 

pended on the relations thus created. If * Raymond v. Tyson, 17 How. 53; The 

the consignor was not debtor for previ- Eddy, 5 Wall. 481 ; The Volunteer, I 

ous carriage, and had not contracted that Sum. 551 ; Chandler v. Belden, 18 Johns. 

these goods might be retained from him 157 J Potts v. N. Y. & N. E. R. R. Co. 131 

for Buch debt, then the carrier's lien did not Mass. 455, 41 Am. Rep. 347; Cowing r. 

extend beyond the charges applicable to Snow, 11 Mass. 415. 

the good* stopped, and on payment or * Wolf v. Summers, 2 Camp. 631. 

tender of these he was entitled to a delir- " There is no reason why there should 

ery of the goods. If the right of the car- not be the same lien for the recovery of 

Her to extend its lien by contract with the passage money as far the recovery of 

owner to the general balance due from freight." Per T^wrence, J. Woods e. 

as it may be, Devin, 13 III. 746, 749, 56 Am. Dec. 483, 

> the goods of per Treat, C. J. ; Nordemeyer i>. Loeecher, 

187 



3, P ,s«b, Google 



§ 270.] CAKBTEBS' LIENS. 

attaches not only to luggage which the passenger delivers to tlie 
company's servants to be marked and carried as such, but also to 
whatever the passenger takes with him as luggage into the pas- 
senger coach ; for this is considered so far in the possession of 
the agents of the company as to authorize it to exercise the right 
of detainer for the passenger's fare, or for freight upon the article 
itself. 1 

If a person goes to a coach-office and has a place booked for 
him in a particular coach, and leaves his portmanteau, the car- 
rier has a lien upon this for some part, but not the full amount, 
of the regular fare, 3 in case the passenger does not occupy his 
place. But if a person merely leaves his portmanteau at the 
coach-office, while he goes to inquire if there is an earlier coach, 
and no place is actually booked for him, the coach proprietor has 
no lien at all. 8 

270. Carriers by water have a lien as well as carriers by 
land. A ship-owner has a lien for freight upon the goods car- 
ried, whether the vessels be chartered, or be general ships carry- 
ing goods for all persons for hire. The master is not bound to 
deliver possession of any part of his cargo until the freight and 
other charges due in respect of such part are paid. 4 This lien 
may be regarded as a maritime lien, because it is cognizable in 
the admiralty, and, under the usages of commerce, arises inde- 
pendently of the agreement of the parties. The ship-owner may 
retain the goods until the freight is paid, or he may enforce it 
by a proceeding in rem in the admiralty court. 5 But although 
the lien is maritime and cognizable in the admiralty, it stands 
upon the same ground with the common law lien of the carrier 

1 Hilt 499; Southwest B. R. Co. p. Bentlj, 11 Mass. 72 ; Cowing o. Snow, 11 Mui. 

51 Ga. 311; Hutchjngs ». Western & At- 414,419; Hunt w. Haskell, 34 Me. 339, 41 

Untie It. It. 25 Ga. 61, 71 Am. Deo. 156. Am. Dec. 389; Frothingham v. Jenkins, 

In California : so declared b.v the Code, 1 Gal. 42, 33 Am. Dec. 386 ; Green tr. 

S 3191 of Civ. Code. Also in Georgia : Campbell, S3 Gal. 586. 

Code 1882, £ 2079. In Illinois it is provided by statute that 

1 Hatchings n. Western* Atlantic R. E. there shall also be a lien upon "goods, 

25 Ga. 61, 71 Am. Dec. 156. wares, and merthandiae shipped, taken in, 

* Higgina v. Brethenon, 5 C. 4 P. 3. and pat aboard nny water-craft for some 

1 Biggins v, B miner-ton, 5 C. & P. 3. due for freight, advanced charges, and de- 

4 Kirchner v. Venus, 13 Moore P. C. murrage." I Annotated SuUh. 1885, cb. 

361; Phillips tr. Rodle, 15 Emit, 547, 12,3 2. 

554 : Bird of Paradise, 5 Wall. 545 ; The * Bird of Paradise, 5 Wall. 549, 555, per 

Volunteer, I Sum. 951 ; Lane v. Panni- Clifford, J.; The Volunteer, 1 Sum. 991 ; 

man, 4 Mas*. 91, 93 ; Lewis c. Hancock, Certain Logs of Mahogany, 3 Sum. 589. 



DigitizM by GOOgle 



IH WHOSE FAVOR THET ATTACH. [§§ 271, 272. 

on land, is subject to the same principles except as regards en- 
forcement, and may therefore be considered in connection with 
the liens of carriers by land. 1 

371. There is ordinarily a lien for freight under a charter- 
party. This lien arises independently of the express terms of the 
charter-party, unless these are inconsistent with it ; and it exists 
even where the charter freight is a fixed sum, having no direct 
relation to the quantity of goods carried. Whatever be the con- 
tract, if the ship-owner undertakes to carry the goods and not 
merely to lease bis ship, it seems that there is a lien for freight. 3 
The substance of the charter-party is considered, and not the 
form of it. If the ship be clearly leased to the charterer, there 
can be no lien, because the hirer is in exclusive possession for 
the term.* But the nature of the service is to be considered, 
as well as the terms of the charter-party, in determining whether 
the ship-owner has parted with possession. Where there is no 
express demise of the ship, and the nature of the service does 
not show that the charterer was to have possession, he does not 
become the owner for the voyage; but the possession continues 
in the ship-owner, and he may have a lien on the cargo for his 
freight. 4 

272. Under a charter-party for the voyage the ship-owner 
generally has no lien on goods shipped by the charterer, be- 
cause he* is considered the owner for the voyage, and the ship- 
owner has no possession of the ship or goods sufficient to main- 
tain a lien. 8 But where the charter-party expressly reserves to 
the ship-owner a lien on the lading of the ship, the charterer in 
effect covenants that, whatever may be the legal operation of the 
charter-party as between themselves, the charterer's possession 
of the ship shall be the owner's possession, so far as the right of 
the latter to a lien on tbe cargo is concerned, and he may assert 
his lien aa against the cargo, though this belongs to the charterer.* 
If the latter sells the cargo during the voyage, the purchaser, with 
notice of the charter-party, takes it subject to the lien in favor 

1 Bird of Parsdue, S WalL 545, per Cowp. 143; Trinity House t>, Clarke, 4 

Clifford, J. ; Bags of Linseed, 1 Black, Hauls & 3. 288. 

108, 118, per Taney, C. J. See g 1700. * Ssville v. Campion, 9 B. & Aid. 501. 

■ Carter'! Carriage of Goods by Sea, * Hutton r. Bragg, 7 Taunt. 14, 9 

| 655 ; Tate t>. Meek, 6 Taunt. 280. Marsh. 339 ; Belcher v. Capper, 4 M. 4 

* Huttoo o. Bragg, 7 Taunt. 14, 3 0. 309. 

Marsh. 33). And tee Vallejo v. Wheeler, « Small e. Moatca, 9 Biujj. 674. 

189 



- ;: >a, y Google 



§ 273.] carriers' liens. 

of the ship-owner to which it was subject before the Bale. The 
lien remains good even against an indorsee of the bill of lading 
with notice. 1 

273. If the master, being the agent of the ship-owner, signs 
bills of lading for the goods of third persons, or bills of lad- 
ing which are transferred to others, enbject only to the freight 
specified therein, and not expressly reserving a lien to the ship- 
owner for the charter freight, the ship-owner is regarded as hav- 
ing waived his lien under the charter-party, and he is estopped 
from enforcing such lien beyond the freight specified in the bills 
of lading, though this may be less than the charter freight. 
Third persons are authorized to deal with the holder of such bills 
of lading on the basis of the freight therein specified. 3 

Tbe goods of third persons shipped in a general ship are not 
affected by a claim in a charter-party, of which he has no notice 
or knowledge, giving the ship-owner a lien on all the cargo and 
freight for arrears of hire due to him under the charter-party. 8 
A shipper is not bound to assume that there is a charter-party, 
and he is not bound by its contents until he is put upon inquiry.* 
But if the charterer of a aliip, under a charter-party giving the 
owner a lien on any part of the cargo for all the freight, fraudu- 
lently issues a bill of lading for the goods of a third party, using 
the master's name without his knowledge or authority, who bad 
no knowledge of the charter-party, tbe goods are subject to the 
lien given by tbe charter-party. 6 

And so if the master of a ship collusively issues hills of lading 
to shippers with the purpose of depriving the ship-owner of his 
lien, the latter may nevertheless detain the goods for the freight 
due under the charter-party. 6 And so, if the master acts with- 
out authority in issuing bills of lading which make the freight 
payable to third persons, the ship-owner may still have a lien on 
the goods for the balance of the charter freight. 7 It is not in the 

1 Small v. Moater,, s Bing. 574. Some v. Comfort, 31 L. J. C. P. 58; The Karo, 

pnuflge* in the judgment rendered by 39 Fed. Rep. 652. 

TindaJ, C. J., in (his case, are not quali- ■ The Siornowny, 46 L. T. 773. 

fied u in the text above, and an not in * Per Lord Romilly , in Peck v. Lanen, 

accord with later decibiona. 12 Eq. 378. 

1 Foster ». Colby, 28 L J. Ex. 61 ; Card- * The Earo, S9 Fed. Rep. 653. 

ner v. Trechtnann, IS Q. B. D. 154 ; * Faiih o. East India Co. 4 B. & Aid. 

Mitchell tr. Scaife, 4 Camp. 298 j Chappel 630. 

1 Reynolds v. Jex, 34 L. J. Q. B. 251. 
190 



3igitiz eC by GOOgle 



IH WHOSE FAVOB THEY ATTACH. [§ 274. 

powes of the master to change the charter-party eo aa to release 
the charterer from his contract with the owner, and deprive the 
latter of bis lien on the cargo for his freight. All the power 
delegated to the master while the charter-party continues to oper- 
ate, is to perform the undertakings of the owner in the fulfilment 
of the contract. 1 

274. The bill of lading may by its terms incorporate the 
charter-party, or a provision of it giving a lien for freight, eo 
that the owner's lien for charter freight will be preserved. 1 A 
provision, however, that freight shall be paid a» per charter-party 
may mean only that freight is payable at the rate mentioned in 
the charter-party, so that the lien would be limited to such rate, 8 
and further liens given by the charter-party would not be pre- 
served.* Under such a general reference to the charter-party, a 
lien given by that for dead freight, or demurrage, does not attach 
as against holders of the bills of lading who have no other know- 
ledge of the provisions of the charter-party." 

A charter-party expressly provided that the owner should have 
a lien on the cargo for freight, dead freight, and demurrage, and 
also provided that the captain should sign hills of lading at any 
rate of freight : " but, should the total freight, as per bills of 
lading, be under the amount estimated to be earned by this 
charter, the captain to demand payment of any difference in ad- 
vance." Goods were shipped and a bill of lading issued whereby 
freight was made payable at a less rate than that provided for by 
the charter-party ; the bill of lading also containing a clause pro- 
viding that extra expenses should be borne by the receivers, and 
"other conditions as per charter-party." Upon the arrival of 
the ship at the port of discharge, the owner claimed and com- 
pelled payment at the rate mentioned in the chatter-party. In a 
suit by the consignees to recover the excess paid above the 
freight specified in the hill of lading, it was held a that the bill 
of lading did not incorporate the stipulation of the charter-party 
as to the payment of freight ; that no right of lien existed for 
the difference between the freight under the charter-party and 

1 Grade o. Palmer, 8 Wheat. 60S. * Smith v. Sie»ek'mg, 5 E. & B. 9B9. 

1 Porteua t>. Watney, 3 Q. 1). D. 223 ; • McLean v. Fleming, L. it. 2 H. L. 
Wegener u. Smith, 34 L. J. C. P. 15; {Scotch} 123 ; Chappel v. Comfort, 31 L. 
Gray e. Carr, L R. 6 Q, B. 939, 523. J. C. P. 5B. 

* Fry t>. Chartered Mercantile Bank, L. « Gardner n. Trechmann, 15 Q. B. D. 
H. I C. P. «8». 1S4. 

191 



y, Google 



§§ 275, 276.] carriers' liens. 

that payable under the bill of lading; and tbat the plaintiffs 
were entitled to delivery of the goods upon payment of the 
freight specified in the bill of lading. Brett, M. It., said : " In 
the first place, I am of opinion that the charter-party gave no 
right of lien for that difference ; the excess of the amount esti- 
mated to be earned by the charter-party over the freight payable 
under the bills of lading was to be paid immediately before the 
ship sailed; it was to be demanded by the captain; the ship- 
owner had no right of lien for that excess even against the char- 
terer ; the stipulation was a mere reservation of a right which 
the ship-owner could not enforce by lien. Secondly, if the right 
of lien ever existed, it was ousted by the terms of the bill of 
lading. There are many eases as to what is brought into the bill 
of lading by this general reference to the charter-party. It 
brings in only those clauses of the charter-party which are ap- 
plicable to the contract contained in the bill of lading ; and those 
clauses of the charter-party cannot be brought in which would 
alter the express stipulations in the bill of lading." 

275. A ship-owner has no lien for freight, before the com- 
mencement of the voyage, on goods taken on board the ship. 
If the owner of the goods sells them before the voyage begins, 
and gives an order for their delivery to the purchaser, the ship- 
owner cannot detain them for the freight under an agreement for 
a charter-party made with the vendor, the charter-party never 
having been executed in accordance with the agreement. The 
purchaser is entitled to the goods, and the ship-owner must look 
to the vendor for damages for violation of the contract. 1 

A carrier or other person who has undertaken to perform a 
definite service in the carriage of goods cannot claim a lien if he 
has failed to perform his contract. Thus, if he has undertaken 
to haul all the logs upon a certain lot within a certain time, 
and only partly performs the contract, he cannot hold the logs he 
has hauled on the ground of a lien for the service he has done. 1 
It would seem, however, that there is no good reason for any legal 
distinction in this respect between a private carrier and a com- 
mon carrier. 

276. One who is not s public or common carrier, but 
specially undertakes to carry particular goods for hire, in 
said to have no lien for his services, unless be specially reserves 

1 Burgos o. Gun, 3 liar. & J. 325, 827. » Hodgdon v. Waldron, N. H. 66. 
. 192 



3igitiz eC by GOOgle 



IK WHOSE FAVOR THET ATTACH. [§ 277. 

it by agreement. Sat if he holds himself out to the public as 
a carrier for hire, he is as much a common carrier on his first 
trip as on any subsequent one, and is entitled to a lien for his 
services. 1 

Upon general principles, however, there seems to be no reason 
why a private carrier should not have a lien for performing ser- 
vices similar to those rendered by a public carrier. His services 
go to increase the value of the thing carried, in the same manner 
that a mechanic adds to the value of a chattel by his labor upon 
it. The old notion of the origin of the lien, that it is a privilege 
given to a carrier on account of biB obligation to receive and 
carry any goods offered, necessarily confined the Hen to public 
carriers. We have already suggested doubts whether this should 
be accounted the true foundation for this lien ; and it is admitted 
that all carriers by water have the lien, whether they be public 
or private carriers. The usage, moreover, seems now to be com- 
mon that private carriers by land may demand and receive the 
same lien that is given to common carriers. The statutes of sev- 
eral States recognizing or declaring carriers' liens make no dis- 
tinction between public carriers and private carriers. 

It seems that where logs have been transported by being towed 
through a canal or river, or rafted together and floated, the per- 
son performing the service has a lien upon the logs for his com- 
pensation, upon the same principle which gives a lieu for the 
freight of goods forwarded by ordinary conveyances. 3 A lumber- 
man who carries lumber for hire upon a river, though not a com- 
mon carrier, has a lien in the same way that a carrier by water, 
who is not a common carrier, has a lien. 

277. One substituted in the carrier's right occupies his- 
place, but can occupy no better position. An officer levied upon 
goods which the consignor had stopped in transitu, and paid the 
carrier's charges. The consignor thereupon took the goods from 
the officer upon a writ of replevin, and the officer neither de- 
manded the freight charges paid by him, nor in any way placed 
his right to retain possession upon the ground of the carrier's lien. 
It was held that he could not afterwards set up a claim of lien 
for each charges in defence to the Bait. 8 

i Foller V, Bwdley, =5 Pa. St. ISO ; In r. Conmbe, 24 Grant (Ont.) Ch. 519. 

Pfcqnet o. M'Knr, 2 Blackf. 46S. See Hodgiloa v. Wal Iron, 9 N. H. 66. 

1 Wing p. Griffin, 1E.D. Smith, 162; * Keep Mauafuc Co. o. Moore, 11 Lea, 

tol. l- 13 193 



3igitiz eC by GOOgle 



§§ 278-280.] CARRIERS' LIENS. 

278. A carrier acting solely for the bailee or lessee of 
goods has no lien upon them as against the owner. Thus, a 
carrier employed to move household goods, including a leased 
sewing-machine, cannot assert any lien for his services upon such 
sewing-machine as against the owner. 1 

A carrier received goods from commission merchants for trans- 
portation to Europe, knowing, or having reason to know, that 
the merchants were acting merely as agents for the owner, and, 
upon the failure of the commission house, the owner demanded 
the goods of the carrier, who claimed a lien upon them, and 
refused to deliver them. In an action of replevin to recover the 
goods, it appeared that the commission merchants had no author- 
ity to bind the owner by the contract of freight made by them, 
■and that, inasmuch as the carrier was put upon inquiry as to the 
agency and authority of the commission merchants, the owner 
was not bound by the contract they had made with the carrier, 
and that the owner could maintain the action without paying or 
tendering the carrier's charges. 8 

279. There oan be no lien upon goods belonging to the 
United States, or any other sovereignty, for services rendered 
■by a carrier in transporting such goods. 8 

280. An insurance against fire effected by carriers " on 
foods their own, and in trust as carriers," in a warehouse, covers 

ass. The cane of Rurker v. Donovan, 13 Am. Rep. 13. The same role wns applied 

Xaus. 191, 19 Am. Rep. si, is criticised, to the lien of a pilot on a repsel for his 

In that case, the officer attached the t'ouda pilotage, where persons not authorized bj 

under the tame circnmslancea as stated in the owner took command of the vessel 

the text, and paid the carrier's charg-es. and carried her out of the regular course 

It was rightly declared by the court that of the voyage. The Anne, 1 Mason, 508, 

the officer was justified in pitying them, 512. 

and iviit substituted to all the rights of the The same rule is applied to the lien of 
carrier, It was further held thnt, before a keeper of animals. 
the officer's possesion could be disturbed, In like manner the mortgage of a vessel 
he must be reimbursed the munej to ad- Is superior to a subsequent lirn for mate- 
danced by him. But it docs not appear rials. The Great West v. Oberndorf, 57 
by the facta stated, whether the officer de- III. 168. 

raanded repayment of such advances, or 9 Hayes u. Campbell, 63 ChI. 143. 

disclosed the fort that he had paid them. * Dufolt v. Gorman, 1 Slinn. 301, 66 

Under these circumstances, the court, in Am. Dec. S*3. And sen) The Siren, 7 

the Tennessee case, say that there may Wall. 153; The Davis, 10 Wall. 15; 

have been facts which justified the deci- United States v. Wilder, 3 Sum. 308 ; 

sion, but that the facta stated do not jus- Brigga v. Light Boats, II Allen, 157. 

tif v it. Contra, Union Pacific R. It. Co. v. United 

1 Gilson K. Gwinn, 107 Mas*. 1S6, 9 States, 3 Wyo. 170. 
194 



;y Google 



FOE WHAT THEY ATTACH, [§ 280 d. 

the whole value of goods in their hands as carriers, and also any 
interest they hare in them for their lien as carriers, 1 

In Louisiana 1 it is provided by statute that there shall be a 
privilege for money paid by the carrier for prior necessary charges 
and expenses, such as taxes, storage, and privileged claims required 
to be paid before moving goods ; and in case the thing carried be 
lost or destroyed without the fault of the carrier, this privilege 
for money paid by the carrier shall attach to the insurance effected 
on the thing for the benefit of the owner ; provided written notice 
of the amount so paid by the carrier, and for whose account, with 
a description of the property lost or destroyed, be given to the 
insurer or his agent within thirty days after the loss; or, if it be 
impracticable to give the notice in that time, it shall be sufficient 
to give the notice at any time before the money is paid over. 

III. For what they Attach. 
280 a. In the absence 01 an express contract, the lien ia for 
the usual and proper rate of freight. If there was a misun- 
derstanding as to the amount of the charge, the carrier may bold 
the goods for the usual freight, though a smaller rate was named 
to the shipper. Thus a shipper at the freight office of a railroad 
asked the freight cashier the rate to a place named. The cashier, 
not knowing the rate, repeated the question to the way-bill clerk, 
who, on account of noise, misunderstood the cashier, and gave an 
erroneous rate. His only means of knowing the rate was by ref- 
erence to the tariff-sheet which hung in the office for the conven- 
ient use and information of all shippers, the rates in which could 
not be changed by any employee. The cashier's duties did not 
require him to know the rate. On the erroneous answer of the 
way-bill clerk, the cashier figured up the amount of plaintiff's 
shipment, who afterwards delivered his goods, paid the amount to 
the railroad company, and requested shipment to the place named. 
Shortly thereafter the error was discovered, but the shipper could 
not be found, and the goods were forwarded with instructions to 
the agent at the place of delivery to hold them for the additional 
charges based on the correct rate, and which were fair and rea- 
sonable, and would have been paid by plaintiff if he had been 
correctly informed before shipment. The shipper refused to pay 

» London & N. W. Ry. Co. v. Qljrn, I * Key. Laws 1884, I 2878. 
EL & £1. 6S2. 

196 

3igitiz eC by GOOgk 



§§ 281, 282.] OABBIEIS' LIENS. 

additional charges, demanded the goods, and sued for conversion. 
It was held, that there was no contract of shipment, and the rail- 
road company was entitled to hold the goods until it received its 
reasonable charges for transportation. 1 

281. A carrier has no lien for charges not connected with 
the transportation of the goods, and not within the contem- 
plation of the parties. 3 Thus, ordinarily, a carrier has no lien 
for the storage of goods which be has carried, unless there be 
a special contract allowing him to charge for storage. 8 Nor has 
he a lien upon goods for damages arising from the consignee's 
neglect to take them away within a reasonable time after notice 
to him of their arrival. Thus, a railroad company cannot retain 
goods to satisfy a charge for the detention of cars by the failure 
of the consignee to remove the goods after notice ; for the claim 
is in the nature of demurrage, and no lien exists for this. Such 
detention is a breach of contract simply, for which, ae in case of 
a contract in reference to pilotage or port charges, the party must 
seek his redress in the ordinary manner. He cannot enforce it 
by detaining the goods.* 

262. A lien for demurrage in favor of carriers by land is 
not implied by law, and cannot be asserted except by virtue of 
an express agreement, or of a custom so recognized as to have 
the force of a contract. The rules and regulations of a railroad 
company, providing for a lien for demurrage, though published, 
are not binding upon the consignor or consignee of goods with- 
out their consent, or the consent of one of them, when the con- 
tract for shipping the goods was made. Even the knowledge of 
such rules by the shipper or consignee, without assent thereto, 
does not bind him. The law does not presume assent to the 
rules of a railroad company, for damages caused by delay of the 
consignee in receiving goods shipped, from the publication of such 
rules. 6 

' Sea J 297 ; Rowland v. Railroad Co. * Crommelin c. N. Y. & Harlem R. R. 

61 Conn. 103, 23 Atl. Rap. 7S5. Co. 4 Keyes, 90, 

* Lambert v. Kobiuton, 1 Esp. 119; * Burlington k Mo. River R.R.Co.v. 

Adams v. Clark, 9 Ca*b. 315, ST Ant. Chicago Lumber Co. IS Neb. 390 ; Crom- 

Dec. 41 ; Great Northern My. Co. D. Swaf- luelin v. N. T. ft Harlem K. li. Co. 4 

field L. R. 9 Ex, 133, 137, per Pollock,- B. Keyea, 90; Chicago ft Northwestern Rjr. 

» Lambert v. Robiwon, 1 Esp. 119; Co. p. Jenkins, 103 111. 588, 593. Walker, 

Somes o. Briliah Empire Shipping Co. 30 J., said : " The right to demurrage, if it 

L, J. (Q. a.) 339. exiete ai a legal right, ia confined to the 
196 



3igitiz eC by GOOgle 



FOB WHAT THEY ATTACH. [§ 288. 

283. Expenses of keeping property which the consignee 
refuses to receive, — Although a carrier may have no lien for 
charges incurred in keeping goods which the consignee neglects 
or refuses to receive, yet he may recover of the owner the ex- 
penses so incurred. Thus, the owner of a horse Bent it by rail- 
road consigned to himself, and, on the arrival of the horse at its 
destination, there being no one present to receive it, the station- 
master sent it to a livery-stable. The owner's servant soon 
arrived, and was referred to the livery-stable keeper, who refused 
to deliver the horse except on payment of charges stated to be 6A 
The next day the owner demanded the horse, and the station- 
master finally offered to pay the charges and let the owner take 
away the horse; but he declined to take it and went away. The 
horse remained at the livery-stable for soma months, nntil the 
charges for his keeping amounted to £17, when the railroad 
company paid the charges and sent the horse to the owner, who 
accepted it It was held that the owner was liable for these 
charges. 1 Baron Pollock said: "As far as I am aware, there is 
no decided case in English law in which an ordinary carrier of 
goods by land has been held entitled to recover this sort of charge 
against the consignee or consignor of goods. But in my opinion 
he is so entitled. It had been long debated whether a ship-owner 
baa such a right, and gradually, partly by custom and partly by 
some opinions of authority in this country, the right has come to 
be established." 8 Chief Baron Kelly and Barons Pigntt and 
Amphlett delivered separate opinions to the same effect. The 
question whether a lien existed for the charges of keeping the 
horse did not arise, but Pollock, B., incidentally expressed the 
opinion that such a lien did not exist, while Amphlett, B., said 
that, as at present advised, he should not wish to be considered 

maritime law, and only exists nJ to carriers of vessel a have none. Railroads discharge 

bj seagoing VMttll. But it is believed to cargoes curried by tliem. Carriers by ihip 

exist alone by fores of contract. All ouch do not, bat It ie done by the consignee, 

routracis of affrtightment contain an The masters of vessels provide in the con. 

agreement for demurrage in case of delay tract for demurrage, while railroads do 

beyond the period allowed by the agree- not." 

meat, or the custom of the port allowed ' Great Northern Ry. Co. v. Swaffleld, 

lbs consignee lo receive and remove the L. R. 9 Ex. 132. 

goods. But the mode of doing business * Citing Notara v. Henderson, L. R. 7 

by the two kinds of carriers is essentially Q. B. S2S, 310-235, where all the anthor- 

diffetent. Railroad companies have ware- ities are reviewed with care; Cargo rx 

bouses m which, to store freight*. Owners Argos, L. R. S P. C. 134. 

197 



Co ogle 



{§ 284-286.] carriers' liens. 

as holding that, in a case of this sort, the "person who, in pursu- 
ance of a legal obligation, took care of a horse and expended 
money upon him, would not be entitled to a lien on the horse for 
the money so expended. 

284. A railroad company may, however, assume the double 
character of carrier and warehouseman, and is entitled to rea- 
sonable compensation as warehouseman, and a lien as such, in the 
same manner as any other warehouseman. 1 A consignee who 
has notice of a rule or custom of the railroad company to charge 
for storage, where goods have not been called for within a cer- 
tain time after their arrival at their destination, is regarded as 
having impliedly promised to pay charges for storage in accord- 
ance with such custom or rule; and the company may retain the 
goods till its reasonable warehouse charges, as well as its freight 
charges, are paid. 3 If the consignee refuses to receive the goods, 
the contract for carriage having been performed, the carrier may 
store the goods for the use of the owner, 8 and retain a lien upon 
them. 

286. A well-established local custom for carriers by water 
to deliver goods to a storage agent, when the consignee is not 
present to receive them, and to make an additional charge for 
storage, becomes a part of the implied contract under which the 
goods are shipped, and the goods may be detained for the pay- 
ment of such storage as well as the freight. The carrier has the 
right, in the absence of an agreement, to make a charge for storage 
where this is necessary for the protection of the goods ; and this 
charge may be included in the general charge for freight, or it 
may be a separate charge. 4 The fact that the agent of the carrier 
who stores the goods is allowed to retain the entire amount of 
the charge for storage, for his own compensation, does not affect 
the case. 

286. A common oarrler by water has no lien for trans- 

1 Miller e. Mansfield, 113 Man. 360; Packet Co. 9 Helik. GM, 34 Am. Rep. 

Norway Plains Co. tr. 13. ft M. II. R. 1 339 ; Kremer v. Southern Express Co. " 

Gray, 363, 61 Am. Dec 433 ; Barker ». Cold. 336 ; Arthur v. Sch'r Cmsius, 3 

Brown, 133 Mass. 340; Illinois Cent. R. Story, SI, ST ; Fisk t. Newton, 1 Denio, 

R. Co. v. Alexander, 30 III. 33. 40,47, 43 Am. Dec 649 ; Brigjrs D.Boston 

* Culbreth i>. Phila. W. ft B. B. R. Co. 4 Lowell B, R, Co. 6 Allen, 346, 348, 83 

aHoust.399; McHenrj p. Phila. W. ft B. Am. Dec 616; The Eddy, S Wall. 481. 

B.'R. Co. 4 Harr. 448. * Hard p. Hartford ft N. T. Steamboat 

1 Rankin v. Memphii ft Cincinnati Co. 40 Conn. 48. 
198 



3igitiz eC by GOOgle 



X t«j TOR WHAT THET ATTACH., [§§ 287, 288. 

, porting goods from a wharf, at their place oE destination, to 
' % the consignee's place of business in the same city, in the absence 
"^ of any authority from either the consignor or consignee. The 
* fact that the goods are marked with the consignee's place of busi- 

Sness does not impart such authority. 1 
287. A ship-owner has a lien at common law for extraor- 
l dinary expenses incurred for the preservation of the oargo 

V from damage arising from causes for which the ship-owner is not 
• v responsible. 1 Such are the expenses of unloading and drying the 
* cargo to save it from the wreck of the ship. The inquiry in snclt 

J cases is whether the expenditure was incurred in saving the prop- 
erty at risk, as distinguished from an expenditure in performing 
the contract to carry the cargo to its destination and to earn 
£ freight. It is not only the right of the ship-owner to incur ex- 
2 penaes, where reasonably practicable under all the circumstances, 
m to save the goods intrusted on board the ship, but it is bis duty 
9 to do so, and be is liable for not doing so, where his agent, the 

V master, has neglected this duty. 3 The master, if necessary, may 
ffj raise money by a respondentia bond upon the goods, in order to 
^H do what is necessary for their safety. 4 

^ The authority of the master to incur extraordinary expenses 

^k for the preservation of the goods does not arise where the owner 

£ of the goods or his representative is at hand, or it is practicable 

"«^to communicate with him. 6 

j^l 288. The ship-owner has also liens for general average 

- contributions from the oargo where the expenditure lias been 

for the purpose of saving the whole venture, the ship as well as 

the cargo." In that case the owners oE each part saved must 

£ contribute ratably, And the master may retain each part of the 

jj property saved till the amount oE the contribution in respect of 

S it is paid or secured. The ship-owner is the only person who 

can exercise this lien ; and he is liable in damages to a part owner 

of the cargo for not exercising it and securing payment of the 

contributions. 7 

1 Rich ii rd sod it. Rich, 104 Mui. 158, 6 * Cargo ex Snltnn, Situ. 504, 510; 

An. Rep. sio. Cargo ex Argoa, L. R. 5 F. C. 134. 

* Hingsrou v. Wendt, 1 Q. B. D. 367 ; * Crooks r. Allan, 5 Q. B. D. 38 ; 
Cargo ex Argoa, L. R. 5 P. C. 134. Hingaion c Wendt, I Q. B. D. 367, 370, 

* NoMn v. Henderson, L. R. 7 Q. B. per Blackburn, J. 

HS- * Crooks p. Allan, 5 Q. B. D. 88. Sou 

* Cargo ex Sultan, Swa. 504, 510 ; The Halleit o. Bouaneld, IB Vea. 187. 



V* 



jipismb, Google 



§ 289.] , carriers' liens. f/^ 

289. By well-settled commercial liMage, a oarrier may pay 
the freight charges of previous carriers and have a lien for , 
ntoh payment. Each independent carrier who pays such back 
freight may he said to become the agent of his predecessors to 
forward the goods and collect the freight. He may also be re- 
garded as in a manner substituted or subrogated to their rights. 
But more properly the carrier is to be regarded as the agent of 
the owner or consignee to receive and forward the goods. But, 
whatever may be the theoretical foundation of the right, usage, 
growing out of the necessities of the case, baa made the right a 
part of the common commercial law. 1 If, upon the delivery of 
the goods to the consignee, they are found to be damaged, and it 
appears that the last carrier was not associated with the preced- 
ing carriers, and that the damage did not occur while the goods 
were in the bands of such last carrier, his lien for his own freight 
charges and for those of the prior carriers paid by him cannot be 
defeated by a claim for damages. A carrier receiving goods from 
a prior carrier is not obliged to open the packages for examina- 
tion as to the condition of the goods ; but if they are apparently 
in good order he lias a right to pay the back freight, and have a 
lien on the goods for the charges paid as well as his own charges. 2 
If the consignee notifies the carrier before he receives the goods, 
and pays the back charges to a prior carrier, that the goods have 
been damaged, and that he is not to receive them, be does » 
his own risk. He has no right to meddle with the goods against 

1 Bis«el v. Price, 16 111.408, 413. "The * Knight v. Providence & Worcester R. 
reason of Ihis u founded in commercial It. Co. 13 Ii. L 572, 43 Am. Rep. 46; Mon- 
conveiiieuce and necessity, from which teith v. Kirkpatrick, 3 Blatch. 279 ; Biasel 
has originated « universal custom, pervad- v. Price, 16 111. 408, 413; White E, Tann, 
ing the whole country, — indeed, it might 6 Humph. 70, 44 Am. Dec. 294 ; Bowman 
be said, the whole commercial world, — v. Hilton, 11 Ohio, 303. In thii ease Birch- 
which bus been so long established and so ard, J., laid in substance that the Carrier 
universally known that the courts them- receiving the goods from a previous car- 
selves have long taken notice of and recog- rier, In apparent good order, has a right 
nixed it, and hence it has become a psrtof to presume that the owner had duly au- 
the law itself. This commercial conven- thorized the consignment. To entitle him 
ience and universal necessity ia the true to claim his lien (or his own charges and 
reason why this principle has been en- his advances, the law imposed upon him 
grafted upon and become a part of the law nothing beyond what a prudent man 
itself, although, for the sake of harmony, would, under like circumstances, have 
and to avoid apparent contradictions in done in the management of his own bast- 
legal maxims, artiricial reasons have been cess, 
invented, and legal implications raised, in 
order to support it." Per Catoo, J. 

200 



jipismb, Google 



i 



ON THROUGH FBEK3HT. [§§ 290, 291. 

the express direction of the owner, or other person in legal con- 
trol of them. 

290. If a carrier pays the Import duties on goods, he has 
a lien upon them for his reimbursement. The United States 
has a specific lien on all imported goods for the duties on them, 1 
and, though this lien may not be preserved for the benefit of the 
carrier who has paid the duties, a new lien arises in his favor 
under his implied authority to advance all reasonable back charges 
which constitute a lien on the goods, and for which they could be 
detained, 3 

IV. On Through Freight. 

291. When a consignor delivers goods to a carrier to be 
carried over successive routes, beyond the route of the first 
carrier, he makes the first carrier his forwarding agent; and the 
second carrier has a lien, not only for the freight over his own 
route, but also for the freight paid by him to the first carrier. 8 
Even if the first carrier makes a mistake in directing the goods, 
or in taking bills of lading, by reason of which the goods are 
sent to a wrong destination, the last carrier has a lien upon the 
goods, not only for the freight earned by him, but also for the 
sums paid by him for the freight from the commencement of 
the transportation. The first carrier who receives the goods, 
and directs them over the route of the succeeding carrier, is 
the owner's agent, and the successive carriers afterwards car- 
rying the goods act under the authority of the owner, and can- 
not be considered as wrong-doers, though they carry the goods 
to a place to which the owner did not intend they should be 
sent. >■ .- • :-. * • , ■_ • : .; • "; • . 

The question whether the lien continues to the successive' cat' 
Tiers, and may be exercised by the last carrier, ia .in every -case 
to be answered in accordance? with tc^vfacfc whether, the 'first car- 

1 Dennis b. Harris, 9 Pick. 364 ; nom. E. Rep. 367 ; Bird u. Georgia B. R. 72 

Harris v. Dannie, 3 Pet. 399. Ga. 655 ; Vaughan n. Providence & Woi- 

1 Giifflus.nl o. Louisville & Nashville K. center K. R. Co. 13 It. I. 578. 

R. Co. 76 Ala. 453. * Briggs u. Boston & Lowell R. R. Co. 

1 Briggs a. Boston & Lowell R. B. Co. 6 Allen, 346, 250; Denver & It. G. Ry. 

6 Allen, 2*6, 350, 83 Am. Dec. 636; Potts Co. v. Hill, 13 Colo. 35, 21 Pac. Rep. 914 ; 

v. N. Y. & X. E. It. R. Co. 131 Mass. 455, Price o. Railroad Co. 13 Colo. 403, 31 

41 Am. R. 347 ; Crosslin B. New York & Pac Rep. 188 ; Fowler v. Parsons, 143 

N. B. R. R. Co. 1 19 Mats. 196, 199, 31 N. Mass. 401, S N. E. Rep. 799. 

201 



* Google 



§ 292,] CABBIEBS' LIENS. 

rier to whom the goods were delivered ia made, either expressly 
or impliedly, the agent of the owner to forward the goods. 1 If 
there is no such agency, and the first carrier at the end of his own 
route forwards the goods, contrary to the instructions of the owner, 
by an unauthorized route, then the subsequent carriers do not 
become the agents of the owner, but simply the agents of the first 
carrier, and, although they may act in perfect good faith, they 
have no lien upon the goods for their freight, or the freight of 
other carriers advanced by them. If the owner had constituted 
the first carrier his forwarding agent, the owner's consent to the 
diversion of the goods from the intended route would have been 
implied, and the subsequent carriers would have become entitled 
to a Hen for the freight. 3 

292. A railroad receiving goods consigned to a place be- 
yond its own line is clothed with the apparent authority to 
forward the goods by any usual route ; and although the route 
selected is not that by which the owner of the goods intended 
they should be carried, the charges for freight by such route will 
constitute a valid lien upon the property. 8 This rule was fol- 
lowed in a recent case in the Circuit Court of the United States.* 
It appeared that a carload of lumber was shipped in Ohio for 
Denver, Colorado. It was delivered to the Baltimore and Ohio 
Railroad Company, with instructions to forward it from Chicago 
over a particular railroad with which the owners had contract 
arrangements for special rates. The Baltimore and Ohio Com- 
pany disregarded these instructions, and in the usual course of 
business forwarded the car by a different route. On the arrival 
of the car at , Denver the owners declined to pay the freight 
chaiges,. -.and. brought a. .wfife- .of replevin. They claimed that 
Vie Baltimore and Ohio'CoEipanyv fa'disregarding their instrue- 

1 lioti'csod "9. Whiter, 5 C^sh. *157," 51 that the forwarding company Is only a ape- 

AmT Dec'S*. * " ' - cial agent with limited powers ; that who- 

* Briggs o. Boston ft Lowell H. It. Co. ever deals with such egent is bound to 
6 Allen, P-lfi, 83 Am. Dec 62S. take notice of ihe extent of liis authority; 

* Whitney v. Beckford, 105 Mass 267, and that if such carrier, discharging hia 
171 ; Bird v. Georgia R. R. 72 Ga. 655. interaction a, delivers (he Roods to the 

1 Patten v. Union Pacific R_v. Co. 29 wrong carrier, the latter, though he car. 

Fed. Hep, 590; Denver & R. G. Ity. Co. v. ries them to the |.]aee of destination, doe* 

Hill, 13 Colo. 35, 21 Psc Rep. 914. The so at his own risk, and has no claim for 

CMC of Fitch u. Newberry, 1 Doug. (Mich.) freight or lien upon the goods. See 

1, 40 Am. Dec 33, is criticised and dis- j BBS. 
tented from. In that case it was held 

202 



3igitiz eC by GOOgle 



OH THROUGH FREIGHT. [§ 293. 

tiona, had exceeded its authority, and that the carriage by the 
unauthorized route created no charge for freight and no right 
of lien. The court, however, adopted the rule above stated, and 
held that the last carrier was entitled to a lien for its own charges 
and for prior charges paid to other carriers. " Any other rule," 
said Mr. Justice Brewer, "would work a serious hindrance to 
the immense transportation business of to-day, while this rule 
protects both carrier and owner. If the first carrier disobeys 
his instructions, by which loss results to the owner, such carrier 
is liable to an action of damages, and, as is proper, the wrong- 
doer suffers the loss. At the same time, the second, and inno- 
cent carrier, having done the work of transportation, receives, 
as it ought, the just freight therefor. The first carrier is the 
agent of the owner. If he has done wrong, why should not 
the principal be remitted to his action against his wrong-doing 
agent, and why shonld the burden of litigation be cast upon the 
innocent second carrier? Plaintiffs say that, in this case, they 
would have to go to Ohio to maintain their action ; but, if they 
select an agent in Ohio, and that agent does wrong, why should 
they not go to Ohio to punish him for his wrong? And why 
should the defendant, innocent of any wrong, be forced to go 
thither to litigate with their agent ? And why should the owner, 
who has had his goods carried to the place of destination, be per- 
mitted to take them from the carrier without any payment for 
such transportation? Is the route by which the freight is trans- 
ported a matter so vital to him that, carried over the wrong route, 
he is entitled equitably to the possession of his goods free from 
any burden of freight ? " 

293. A connecting carrier who receives goods, knowing 
at the time that they were directed to be sent by another 
route, has no lien upon them. In such case his receiving them is 
wrongful, and his transportation of them afterwards would be 
voluntary. He would have no lien upon them for freight charges, 
and consequently he could not detain them from the consignee. 
His refusal to deliver them in such case would be a conversion 
for which trover would lie. The question whether the carrier 
had knowledge of a direction that the goods should be trans- 
ported by a different route is a question for the jury, and it 
would be proper for them to take into consideration the marks 
203 



3igitiz ec by Google 



§§ 294, 295.] CARRIERS' LIENS. 

on the packages of goods, though these alone might not be con- 
elusive. 1 

The fact that when the connecting carrier received the goods 
from the first carrier, they were loaded in a car appropriately 
marked for the particular railroad over which the first carrier was 
instructed to forward them, does not of itself amount to an im- 
plied notice to the second carrier of such instruction. 3 

294. A guaranty that the through freight shall not exceed 
a certain sum is not binding upon other independent connect- 
ing carriers on the route having no knowledge or notice of the 
guaranty. 1 Each carrier after the first may charge, and pay back 
charges, at the usual rates ; and the last carrier, or the ware- 
houseman who receives the goods and pays the back charges, 
has a lien for the total amount of such charges, without regard 
to the guaranty. It is regarded as unreasonable that the sub- 
sequent carrier, who receives and forwards the goods in the usual 
way, should be bound by a secret contract between the owner and 
a prior carrier, which may prevent his receiving his ordinary 
rates. Whether the bill of lading in this case showed the special 
rate guarantied was immaterial, because on the trial the parties 
stipulated that the succeeding carriers had no knowledge of the 
guaranty. 

295. The prepayment of freight negatives the carrier's 
right to the lien ordinarily implied by law, if he has knowledge 
of such prepayment. Thus, if a railroad company makes a con- 
tract for carrying goods to their place of destination at a point 
beyond its own line, and receives the price of transportation to 
such place in advance, another railroad company, which receives 
the goods from the first company with knowledge that a through 
contract bad been made, cannot assert a lien upon the goods upon 
the ground that the sum allowed by the first company was insuf- 
ficient to pay the connecting company its full share of freight 
charges. A carrier who receives goods from another carrier with 
knowledge that a through contract for carrying them has been 

1 Bin! v. Georgia R, It. 72 Go. SSfl ; Den- Rep. 36 ; Railway Co. v. Lear, 54 Ark. 399, 

rer *. K. G. Ky. Co. c. Hill, [3 Colo. 35, IS S. W. Rep. 1030; Wolf p. Hough, 31 

S 1 Fac. Rep. 914. Kans. 659 ; Vaoghan v. Railway Co. 13 

'' Patten v. Union Pacific By. Co. 29 It. I. 578; Loewanberg ti. Arkansas & L. 

Fed. Rep. 590. Ky. Co. (Ark.) 19 S. W. Rep. 1051. 

* Schiioidnrr. Evans, 25 "Wis. 241, 3Am. 
204 



3igitiz eC by GOOgle 



ON THROUGH FREIGHT. [§§ 

made, and the freight prepaid, is bound by that contract, and can 
assert no lien upon the goods. 1 

296. If a bill of lading or way bill accompanying the 
goods shows that the freight has been paid wholly or in part 
for the through route, the succeeding carriers would be affected 
with knowledge of such prepayment; for if they consult the bill 
of lading they will have actual knowledge, and if they do not 
consult it they may be regarded as guilty of negligence, and con- 
structively affected with knowledge of what the bill of lading 
actually shows. 9 

297. Where the first carrier has received payment on a 
through contract not known to the succeeding independent 
carrier, the latter, coming into possession of the goods under a 
lawful authority, may have a right to charge for his own services 
at the ordinary rate of transportation, and assert a lien therefor. 8 

If the first carrier has received payment for freight oyer his own 
and a connecting line, but has allowed a less sum for the carriage 
over the connecting line than by the tariff of the latter it is 
entitled to receive, the connecting carrier acquires a lien for the 
additional freight, although when the latter accepted the goods for 
carriage it might have had notice from the way-bill that there 
had been an attempt to prepay the freight. 4 

298. If a carrier employs another oarrier in his place to 
forward the goods, the latter has a lien, unless payment has 
been made to the carrier who received the goods in advance, in 
which case the substituted carrier has no lien, but must look to 
the person who employed him. In such case there is no privity 
of contract between the shipper and the carrier who performs the 
service. 6 The carrier to whom the goods were delivered had the 
right to exact payment for his services in advance; and, having 

1 Mirth v. Union Pacific Ry. Co. 3 He- this burden, and, at any rate, m bound 

Ciary, £36, Fed. R. 873. to inquire whether each previous charges 

* Schneider v. Evans, 25 Wis. 141,167, had been prepaid. But this distinction 
pn Paine, J.,3 Am. Rep. 56; Travis n. doeacot aeem to be sound, for, by general 
Thompson, 87 Bub. 136, per Hoge usage, the last carrier pays all prior 
boon, J. freight charges, and business could not 

* Traiis p. Thompson, 37 Barb. 136, well be conducted unless he is protected in 
243. Judge Hogeboom suggests the die- making such payment. 

tinction, that such carrier ma; have no * Crossan e. New York t N, E. 8. S. 
lien for pretious charges paid by him upon Co. 149 Mass. 196, 11 K.'E, Rep. 367. 
the good*, for the reason that be is not * Nordemeyer n. Loescber, 1 Hilton, 
oUged to receive the goods charged with 499. 

205 



3igitiz eC by GOOgle 



§ 299.] carriers' liens. 

done so, he is not the owner's agent to employ any other carrier to 
perform the service for hira and to collect payment of the freight 
again. Consequently, the substituted carrier, though acting in 
good faith and without knowledge of prepayment of the freight, 
cannot collect it again, or retain the goods for its payment to him- 
self. He can act only in subordination to the original contract 
with the owner. Where there is no arrangement between con- 
necting carriers, a subsequent carrier is not bound by a receipt 
given by the first carrier for the through carriage of the goods ; so 
that, although the first carrier has given a receipt stating that the 
freight charges have been paid through to the place of destination, 
the last carrier, having received and transported the goods without 
notice of such prepayment, has a lien upon the goods for his own 
unpaid charges. 1 It is said that, while the receipt is binding upon 
the carrier who gave it, yet, before the subsequent carrier could 
be held to its terms, it must appear either that he had given 
authority to the first carrier to make such a contract, or that he had 
undertaken the transportation with notice that such a contract 
had been made. 

Although the prior carrier has agreed with the owner that his 
charges should be applied to the account of a prior indebtedness 
of his to the owner, a subsequent carrier who has in good faith, 
and in accordance with the usual custom of business, paid the 
freight charges of the prior carrier without knowledge of such con- 
tract, is entitled to retain the goods until such charges are repaid 
to him. 1 

299. If the last carrier has paid to a previous carrier an 
amount in excess of the usual and proper charges for trans- 
porting the goods, he can assert a lien for only the customary and 
reasonable rates of transportation. 8 

l Wolf u. Hough, 92 Kane. 659. A de- ledge of snch prepayment, has received 

cision to the contrary is Fitch it. Newberry, the goods from another carrier, and paid 

1 Doug. 1, 40 Am. Dec 33, which hai him the foil amount of the customary 

been discredited in all the later deciaions. charges for the previous transportation of 

Id that case it waa held thai, if the con- the goods, he ran H-seri no lien against the 

sigiior has paid in advance to the original consignee either for the charges he has 

carrier a portion of the freight charges, paid to the prior carrier, or for his own 

the ultimate carrier can assert a lien for services in currying the goods. See £ 3B2. 

only the remainder of the proper chitrges a While v. Vann, 6 Humph. TO, 44 Am. 

after deducting the payment on account. Dec. 294. 

If the freight has been wholly prepaid, ' Travis v. Thompson, 37 Barb. 234, 

but the ultimate carrier, without know- 336 ; Hallorjr v. Bur ret t, 1 E. D. Smith, 

206 23*. a * 7 - 



3igitiz eC by GOOgle 



ON THROUGH FHEIGBT. [_'§§ 300-802. 

300. If the last carrier has not paid the prior charges, his 
lien is limited to the amount agreed upon with the first 
carrier. 1 Thus, where a railroad company makes a through 
contract for the carriage of goods, and delivers them to an inde- 
pendent connecting company to be delivered at the place of des- 
tination, the latter, on carrying thera to such point, must deliver 
them to the consignee upon his tendering the sum agreed upon, 
if this sum equals the regular charges of the latter company, 
whether it includes any charges for the former company or not ; 
and if such company refuses, upon a tender of such sum, to 
deliver the goods, the consignee may replevy them. The first 
company assumed the burden of satisfying the charges of the 
roads over which the goods were to be carried ; and the last 
carrier, not having paid the prior charges, can assert a lien only 
for the amount agreed upon, and must settle as it can with the 
company that made the contract. 

301. The lien does not cover advances made for matters 
not connected with the carriage of the goods. The lien ex- 
tends only to the carrier's own charges for carrying his goods, 
and such charges of prior carriers as he may have paid. It does 
not extend to or cover advances made on claims against the 
owners or consignees wholly foreign to, and disconnected with, 
any cost or charge for transportation. It is the duty of the 
carrier to examine the charges that are made by a prior forward- 
ing agent or carrier, and the fact that he has paid charges upon 
the goods does not enable him to retain them for a greater sum 
than the usual and proper charges previously incurred in their 
transportation. If the carrier has paid charges which include a 
prior debt due the forwarding agent or carrier from the shipper, 
he cannot hold the goods against the owner or consignee for the 
amount paid on account of such prior debt. a 

302. The fact that the goods have suffered damage before 
they reach the last carrier, who has received them from a prior 
carrier, does not deprive the last carrier of his lien for freight and 
for charges paid. 8 The last carrier, in receiving the goods in good 
faith and in apparent good order, and paying the costs and charges 
upon them, is regarded as acting as the agent of the owner, and 



Erunsville ft Crmffontiville R. R. Co. * Steamboat Virginia 


p. Kroft, as Mo. 


Sarah, 57 Ind. SOS. 67. 




1 Bowman v. Hilton, 1 


1 Ohio, SOS. 


207 





§ 80S.] carriers' LISNS. 

not as the agent of the prior carrier ; and the last carrier ia not 
liable for any damage; to the goods which took place while they 
were in the hands of a prior carrier. 1 

A similar rule applies where the first carrier expressly limits 
its liability to its own line, but undertakes to forward goods, and 
prepays the charges for such further carriage : the lien of the first 
carrier is not in such case impaired by damages incurred by the fault 
of the second carrier. Thus, where an express company received 
a package of money to be carried to the terminus of its line, 
and to forward it by a stage company, and through the delay of 
the stage company it did not reach its destination until the con- 
signee had left, and the consignor ordered its return, it was held 
that the express company had a lien on the package after its return 
for its own charges, and also for the advances it bad made to the 
stage company. 3 

V. Upon Stolen Qoodt. 

303. Whether a carrier has a lien upon goods which 
have been stolen, bo that he can detain them for his charges 
against the true owner, is a question upon which the authorities 
are not in harmony. The English courts hold that he has a lien 
even upon such goods. In an early case, Chief Justice Holt 
declared that a common carrier might detain goods for his 
charges, although they where delivered to him by one who bad 
stolen them.' He cited the Exeter Carrier's case, " where A. 
stole goods, and delivered them to the Exeter carrier, to be car- 
ried to Exeter : the right owner, finding the goods in possession 
of the carrier, demanded them of him, upon which the carrier re- 
fused to deliver without being paid for the carriage. The owner 
brought trover, and it was held that he might justify detaining 
against the right owner for the carriage : for when A. brought 
them to him, he was obliged to receive them and carry them ; 
and therefore, since the Jaw compelled him to carry them, it will 
give him remedy for the premium due for the carriage." 

304. The American decisions upon this point generally 

1 Hunt v. N. T. & Erie R. Ji. Co. 1 Powell, J., dissenting; Butler v. Wool-. 

Hilton, saS; Bissel 8. Price, 16 III. +08. cutt, 2 Eos. & Pnl. N. R. 64. Thlavfew 

* United State* Express Co. v. Haines, was incidentally recognized in King v. 
87 111. 137. See The Thomas McMnnus, Richard*, G Whan. 418, ST Am. Dee. 
14 Fed. Rep. 509. 430. 

* York* ». QeDaagb, 2 Ld. R»jm. 866, 

208 



3igitiz eC by GOOgle 



UPON STOLEN GOODS. [§ 305. 

discard the English doctrine, and hold that the carrier has 
no lien for the carriage of goods which he lias received from 
a wrong-doer, without the consent of the owner, express or im- 
plied; for they say that the duty of the carrier to receive and 
carry goods arises only when they are offered by the owner, 
or by his authority. 1 The chattel does not generally in such 
case become more valuable to the owner by reason of such car- 
riage ; on the contrary, he is quite as liable to be injured as ben- 
efited by its transportation after it is wrongfully taken out of 
his possession. And, moreover, it is a settled general principle 
that no man can be divested of bis property without his consent, 
so that even an honest purchaser under a defective title cannot 
hold it against the true owner. 1 

The Supreme Court of Massachusetts, asserting this funda- 
mental principle against the carrier, ask : s "Why should the 
carrier be exempt from the operation of this universal principle? 
Why should not the principle of caveat emptor apply to him ? 
The reason, and the only reason given, is, that he is obliged to 
receive goods to carry, and should therefore have a right to 
detain the goods for bis pay. But he is not bound to receive 
goods from a wrong-doer. He is bound only to receive goods 
from one who may rightfully deliver them to him, and he can 
look to the title, as well as persons in other pursuits and situa- 
tions in life. Nor is a carrier bound to receive goods unless the 
freight or pay for the carriage is first paid to him ; and lie may in 
all cases secure the payment of tbe carriage in advance." 

306. The same rule applies where the goods have merely 
been wrongfully diverted from the route authorized by the 
owner, and have come into the hands of the carrier without the 
consent of the owner, expressed or implied. Though the carrier 
is ignorant of this fact, and supposes that the goods have been 

» Robinson e. Baker, 5 Cuah. 137, 51 Smith, 58 N. Y. 672; Collman t>. Collin*, 

Am. Dec 54 ; Stevens v. Boston ft W. 3 Ball, 569 ; Buskirk v. Purinton, 2 Hall, 

K. R. Co. BGrav, 263; Clark v. Lowell 561; Everett v. SaltD*. 15 Wend. 47*; 

A L. R. H. Co. 9 Gray, 231 ; Gilton e. Travis v. Thompson, 37 Barb. 336; King 

Gwinn, 107 Mass. 126, 9 Am. Rep. 13 ; v. Richards, 6 Whart. 418, 37 Am. Dec. 

Ames e. Fulmer, 42 Me. 197, 66 Am. Dec 430. 

371 ; Fitch v. Newberry, 1 Doug. 1, 40 * Saltua v. Everett, 30 Wend. 367, 375, 

An. Dec. 33; the Brat direct adjudica- 33 Am. Dec. 541. 

tion ; Vaaghan v. Providence and Wor- * Itobinaon v. Baker, 5 Coin. 137, 143, 

ceaier R. B. Co. 13 R. I. 678; Martin if. 51 An. Dec. 54. 

vol. I. 14 209 



y, Google 



§ 806.] 

rightfully delivered to him, he cannot in anch case detain them 
for the payment of his services, or the payment of the charges 
of the previous carrier. Having in fact obtained possession of 
the goods wrongfully, though innocently, he is bound to deliver 
them to the owner or consignee on demand, and, on refusal, such 
owner or consignee may take them by writ of replevin, or re- 
cover their value in an action of trover. 1 A carrier who receives 
goods from a wharfinger, with whom the owner has deposited 
them without authority to forward them, has no lien on them for 
freight against the owner. 3 

For a stronger reason, a carrier who receives goods from an 
agent, with notice that the agent in contracting with the carrier 
has exceeded his authority, cannot hold them for his charges as 
against the principal, who may reclaim them without paying such 
charges. 1 

306. But a carrier receiving goods from one who, by the 
owner's act, baa been olothed with an apparent authority, 
has a lien on them as against such owner. 4 Thus, if the carrier 
receives goods from one to whom the owner has delivered them, 
intending at the time to part with his property in them, though 
he may have been induced to sell and deliver them by fraud or 
falsa pretences, which would authorize him to disaffirm the con- 
tract and reclaim them from the person to whom he had delivered 

1 Pilch v. Newberry, 1 Doug, t ; Robin- their duty, the canal company shipped the 

•on b, linker, 5 dish. 137, 51 An). Dec. 54; flour to New York, and thence by vessel to 

Stevens v. Boston & Worcester R. K. Co. 8 Boston. It was held that the owners of 

Gray, S62. Id Robinson v. Baker, S Cush. the vessel had no lion upon the flout for 

IS7,SI Am.Dec54,theownerof aparcelof the freight. 

flour delivered it to a canal-boat company to These cases are distinguished from such 

be transported to Albany. This company cases as Briggl v. Boston & Lowell K. It. 

gave bills of lading wherein they agreed Co. 6 Allen, 246, S3 Am. Dec. 636, where 

to deliver it at Albany to a person named, the owner makes, the firat carrier his agent 

who was the agent of the Western Rail- to forward the goods, and the owner thus 

road Company. The owner sent one of becomes responsible for mistakes of thia 

these bills to this agent, and the other to agent in forwarding them, 

the consignee at Boston, thns resetting to ! Clark v. Lowell & Lawrence R. R. Co. 

himself the right, and n teaming the re- 9 Gray, 131. 

•ponsibility of giving to the agent the di- * Hayes t>. Campbell, 63 Cat, 143. In 

tactions for forwarding the Roods. The this caw the carrier was pnt upon in 

canal company did not become the owner's qniry as to the terms upon which the 

agent to forward the goods, and had no agent coald contract fot the carriage of 

right to exercise any control over them, the goods. 

' except to deliver them to the agent of the * Vanghan v. Providence & Worcester 

railroad company. Tet, in violation of R. B. Co. 18 B. L 573. 
210 



ween- by Google 



THKIB WAIVES AMD LOSS. [§§ 807-809. 

them, the carrier stands in the position of a bond fide purchaser, 
and has a valid Hen upon them for his charges and advances. 1 

307. The carrier's lien cannot be set up by a wrong-doer. 
The lien of a common carrier is a personal privilege which he 
alone can set up. It does not deprive the owner of the goods of 
Iiia right to immediate possession as against a wrong-doer. The 
owner has constructive possession, and may sue any one in trover 
or trespass who forcibly or wrongfully takes them from the car- 
rier. Such trespasser or wrong-doer cannot set up the carrier's 
right of possession to destroy the right of the general owner to 
maintain such action. 3 If such wrong-doer pays the freight and 
charges of the carrier, he does not thereby acquire the carrier's 
lien and a right to hold the goods. 8 

VI. Their Waiver and Logs. 

308. Of course the carrier may waive bis lien, and he does 
so by delivering the goods without first requiring payment of the 
freight. 1 By relinquishing possession he is deemed to yield up 
the security he has by means of it, and to trust wholly to the 
personal responsibility of the owner or consignee. Possession is 
the first requisite of a common law lien, and if this be parted 
with the lien is gone. He may hold possession by an agent, but, 
if such agent acts on his instructions in such a way as to give the 
possession to tbe owner or consignee, the lien is lost. 

In like manner a maritime lien for freight and demurrage is 
waived by an unconditional delivery of the cargo,' unless there 
is an understanding that the lien is to remain, or there is an es- 
tablished local usage of the port where the cargo is delivered that 
the lien shall remain. 8 

309. The placing of the goods in a warehouse is not a 
delivery that destroys the carrier's lien, if the carrier still 

1 Caldwell tr. Bartletl, 3 Doer, 3*1. p. C. C. A B. E. R. Co. M Iowa, 338 ; 

* Abh v. Palmer, 42 Me. 197, 66 Am. Terril b. Rogers, 3 Hay*. 303 j Gring v. 
Dec 371, supported by similar caws be- Cargo o! Lumber, 38 Fed. Rep. 538; Egaa 
tween principal and agent : Daubiguy v. v. A Cargo of Spruce Laih, 33 Fed. Hap. 
Duval, 5 T. K. 604 ; MeCombie if. Daviea, 180, affirming 41 Fed. Rep. 830. 

7 Eaat, 5 J Holly v. Huggeford, 8 Pick. 73, • Egan v. A Cargo of Spruce Lath, 41 

19 Am. Dec. 303 ; Jonea u. Sinclair, 2 N. Fed. Rep. 830 ; Bags of Linaoed, 1 Black, 

IL319, 9 Am. Dec 76. 108. 

* Guilford v. Smith, 30 Vc 19. • Wilcox v. 600 Ton* of Coal, 1* Fed. 

* Bjgelow n. Heaton, 4 Denio, 49B ; Win- Rep. 49. 
g&xd o. Banning, 39 Cal. 943; ReiaeuM 



y, Google 



§§ 810, 311.] CARRIERS* LIEHS. 

retains exclusive control of tbe goods. If the warehouse be his 
own, he of coarse retains such control. So, if by law a ship-owner 
is required to land and store tbe goods in a particular place, or in 
a public warehouse, his lien is not thereby affected.* 

But if the carrier stores them in the warehouse of an independ- 
ent person who has a lien for warehousing charges, it seems that 
the carrier's lien will be lost.' 

310. A carrier who has once parted with the possession 
of the goods with the intention of making delivery cannot 
revive his lien by a resumption of possession, nor has be any 
right by reason of his claim to stop the goods in transitu,* unless 
he has lost possession by fraud. 1 

If one who has a lien on goods ships them to the owner on 
his account and at his risk and expense, his lien is gone, for this 
is equivalent to a delivery to the owner. The lien cannot be 
recovered by stopping the goods in transitu, and procuring a re- 
delivery by means of a bill of lading from the carrier issued after 
the commencement of the voyage. 1 

A ship-owner's lien for freight depends upon his possession of 
the goods, and is lost by delivering them to the consignee volun- 
tarily, and without notice that he looks to him for the payment of 
his charges; s or when any agreement is entered into by the par- 
ties in regard to the payment of freight, which involves a prior 
surrender of the possession. This lien, without possession, cannot, 
like some maritime liens, be enforced by a proceeding in rem.' 

311. Delivery to the consignee upon condition. — What 
acts on the part of a ship-owner amount to a waiver of his lien 

1 Wilson f. Kjraer, 1 M. & S. 157, 163. Undertake to the muster not to deliver the 

Lord Ellen borough, C. J., interrupting goods to the consignee without being p*id 

the argument, asked : " la not this point tbe master's claim for freight." 
incontrovertible, that, when goods on * Sweet v. Pym, 1 East, 4, per Duller, 

board a ship are subject to lien, if the; J. ; Artaza v. Smallpiece, 1 Esp. 23 ; 

arc taken ont of the ship in incitum and Coombs v. Bristol & Exeter Ry. Co. 27 L. 

by compulsion of law, the Hen shall be J. Ex. *D1 ; Hartley u. HitchcocL, 1 Stark. 

preserved in the place «f safe custody 408. 
where the goods are deposited by law I " * Wallace v. Woodgate, Ry. & M. 193. 

9 Mors-le-Blanch ». Wilson, L. It. 8 C. * Sweet v. Pym, 1 East, 4. 
P. 227, 240. Brett, J.: "I yery much • Cranston p. Cargo of Coal, 21 Fed. 

doubt whether, if the master were x> to Rep. 614. 

deposit the goods on shore as to give an- ' Cutler v. Kae, 7 How. 739 ; Dnpont o. 

•other person a lien upon them, he would Vance, 19 How. 162, 171 ; Bags of Lin 

not aa a matter of course lose his own lien, seed, 1 Black, 108, 1 13. 
ereu though such other person should 
212 



3igitiz eC by GOOgk 



TBEIB WAIVER AND LOSS. [§ S12. 

for freight, it is often difficult, to determine. It is not divested 
by a delivery to the consignee or his agent if conditions are 
annexed to the delivery, or if there be an understanding, express 
or implied, that the lien shall continue. 1 The ship-owner, or the 
master as his agent, may agree with the consignee or owner that 
the goods shall be deposited in the warehouse of the consignee 
or owner, and that such deposit shall not be regarded as a waiver 
of the lien, and the courts, both at law and in admiralty, will up- 
hold the agreement and support the lien. 3 

The mere manual delivery of an article by a carrier to the 
consignee does not of itself operate necessarily to discharge the 
carrier's Hen for the freight; the delivery must be made with 
the intent of parting with his interest in it, or under circum- 
stances from which the law will infer such an intent. The act 
of the party is characterized by the intent with which it is per- 
formed, either expressly or by necessary implication. Therefore, 
a delivery made under the expectation that the freight will be 
paid at the time is not such a delivery as parts with the lien, 
and the carrier may afterwards libel the article in rem, in admi- 
ralty, for the freight. 3 

312. What delivery is effectual to terminate a carrier's 
lien is often an important and difficult question. Delivery of the 
goods and payment of the freight are, in the absence of any spe- 
cial contract, acts to be done at the same time. A delivery may 
be complete for one purpose, and not for another. Thus, a deliv- 
ery may be complete so far as to terminate the liability of a car- 
rier, and yet be upon an implied condition as to payment. If a 
railroad company carries coal to its place of destination, and the 
owner's servants deposit it in bins on the company's land adjoin, 
ing the owner's land, the lien is not lost. 4 

1 Bags of Linseed, 1 Black, 108, 113. with the load, should demand the freight, 

> The Eddj, 5 Wall. 481 , 495, per CI if- could it be supposed that they would have 

ford, J. no right to retake the ilour if he should 

1 151 Tons of Coal,4Blatchf. 368. See refuse to pay? But suppose, instead of 

Egan D. A Cargo of Spruce Lath, 41 Fed. ouc load, (here should be a hundred barrels, 

Rep. 830, which is distinguished. and the first load should be allowed to go 

4 Lane v. Old Colony & Fall River R. without payment, the rest being taken 
R. Co. 14 Gray, 143, 148. Hoar, J., said : from the cars and put upon the platform 
" Suppose the railroad company should in the freight-house, the company know- 
allow a customer, for whom they had Ing that enough was left to make them 
brought a lot of flour, to unload it from secure, and the demand should be made as 
the canon to his wagon, and, as he started the owner was about removing the last 

213 



y, Google 



§ SIS.] CARRIERS' liens. 

313. The payment of the freight and the delivery of the 
goods are ordinarily to be concurrent acts. Even if the bill 
of lading of a cargo provides for the payment of the freight on 
the right delivery of the cargo, the delivery of the cargo ia not a 
condition precedent to the right to demand the freight. 1 The 
delivery of the cargo and the payment of the freight are still to 
be concurrent acts, and the master is not bound to deliver the 
cargo unless the consignee stands ready to pay the freight at the 
same time. On the other hand, the master is not entitled to de- 
mand the freight unless be is ready to deliver the cargo. There 
must be a concurrent readiness on both sides, — on the one to 
deliver, and on the other to pay. The ship-owner or master may 
require a pro rata payment of the freight of goods as they are 
landed from day to day on the wharf, if the goods are at the 
same time delivered to the consignee. 9 But the master cannot 
properly demand payment of the freight upon the whole ship- 
ment, when he has landed and is ready to deliver only a part of 
it. 8 Tbe consignee is entitled to an opportunity to examine the 
goods and see if the obligations of the bill of lading have been 
fulfilled by the ship-owner. When the landing of a cargo occu- 
pies several days, and the consignee does not receive the goods 
and make pro rata payments of freight, if such payments are 
demanded the master may deliver tbe goods on the wharf ; and 
if. they are not taken by tbe consignee after notice, the master 
may store the goods for safe keeping at the consignee's expense 
and risk, in the name of the ship-owner, to preserve his lien for 
the freight. 4 

A frequent and even general practice at a particular port for 
the owners to allow goods to be transported to the warehouse of 
the consignee, and there inspected before freight is paid, ia not 
such a custom as will displace the ordinary maritime right of tbe 
ship-owner to demand payment of the freight upon the delivery 
of the goods upon the wharf. 6 

load, could this destroy the right W> retain * Black o. Roae, 2 Moore P. 0. (N. S.) 

■for their lien 1 " 277. 

1 Tate v. Meek, 8 Taant. 280, 293, per • Brittan v. Barnaby, SI How. 527. 

Gibbe, C. J. ; Paynter v. James, L. K. 2 C. * Brittan v. Barnaby, 21 How. 527, per 

P. 318 ; Black v. Rose, 2 Moore P. C. (N. Wayne, J. ; The Eddy, 5 Wall. 481. 

S.) 277 ; Rankin r. Memphis & Cineto- ' The Eddy, 5 Wall. 4B1. 
nati Packet Co. 9 Heisk. 564, 24 Am. Rep. 
339. 

214 



3igitiz eC by GOOgk 



THEIR WAIVER AND LOSS. [§§ 314, 315. 

314. The terms of the charter-party may be euoh, however, 
that the chartered freight will not be due until the oargo has 
been completely delivered. TIiub, a ship was chartered to go to 
Algoa Bay for a cargo, with which to proceed to London, where 
it was to be delivered on payment of freight at certain specified 
rates. The freight was to be paid "on unloading and right 
delivery of the cargo." The master was to sign bills of hiding 
under which the freights were to be collected by the charterer. 
It was held that the charter-party freight was not due till the 
objects of the voyage had been carried out. 1 " On principle," 
said Lord Justice Wood, "we conceive that the freight cannot 
be doe from the charterers on a charter-party, such as the pres- 
ent, until they have had the full uses of the ship for the purposes 
for which they chartered it. It is, in fact, analogous to the de- 
mise of property until a given purpose is answered, the purpose 
in this case being, first, the outward voyage ; second, the taking 
iu of a complete cargo at such profit freight as the charterers 
might be able to obtain above the freights they have agreed 
to pay to the owner ; and, third, the delivering of the cargo to 
the consignees by the charterers. . . . Now it is not alleged that 
there was any undue delay on the part of the charterers in the 
unloading and delivering. Until, therefore, that was absolutely 
completed, it appears to us the freight was not due to the owner." 
The ship-owner's right of .lien was not involved in this case. A 
lien was expressly given by the charter-party, and the decision 
was not inconsistent with such a lien. The question in the case 
arose between a mortgagee of the ship, who had taken possession 
while the cargo was being discharged, and an assignee of the 
freight from the ship-owner. But the decision has an important 
application, and would cut away the lien for freight in like cases 
where no lien is expressly reserved, 3 

315. If a oargo is placed in the hands of a consignee, with 
the understanding that the lien is to continue, a court of ad- 
miralty will regard the transaction as a deposit of the goods, for 
the time, in the warehouse, and not as an absolute delivery, and 
on that ground will consider the ship-owner as being still con- 
structively in possession so far as to preserve his lien. 3 It is the 

1 Brown v. Tanner, L. B. S Cb. 5S7, a Carver on Carriage of Good* by Sea, 
603. | 653. 

a Bag* of Linseed, 1 Black, 108. 
215 



;y Google 



§§ 316, 817.] cashiers' liens. 

duty of the consignee, and not of the ship-owner, to provide a 
suitable and safe place for the storage of the goods ; and several 
days are often consumed in unloading and storing the cargo. If 
the cargo could not be unladen and placed in the warehouse 
of the consignee without waiving the lien, it would seriously 
interfere with the convenience both of the ship-owner and the 
merchant. In such a case it is frequently understood between 
the parties that such a transfer of the goods to the consignee's 
warehouse shall not be regarded as a waiver of the ship-owner's 
lien, but that he reserves the right to proceed in rem to enforce 
it, if the freight be not paid. But such a transfer of the goods 
into the possession of the consignee will defeat the lien, unless an 
understanding that it shall not have this effect can be shown to 
have existed between the parties, or unless it be plainly inferable 
from the established local usage of the port. 1 

313. A promise to pay the amount of a carrier's lien upon 
goods is not necessarily presumed from the taking possession of 
such goods with knowledge that such a lien is claimed. Thus, 
where a railroad company, having delivered a portion of a cargo 
of coal on the order of the consignee to a purchaser of the whole 
cargo, on the arrival of the remainder of the coal notified the 
purchaser that it claimed a lien on such remainder for the freight 
of the entire cargo, and directed him not to unload it, but the 
purchaser did unload and take possession of the coal without 
paying the freight, it was held the purchaser could not be con- 
clusively presumed as a matter of law to have promised to pay 
the freight. 3 

317. The carrier's lien is not lost in oase the goods are ob- 
tained from him by fraud. He has not in such case voluntarily 
parted with the possession. His right of possession remains, and 
he may assert this right by replevying the goods, though they be 
in the hands of the consignee. 8 Thus, if the goods are delivered 
to the consignee in consequence of his false and fraudulent prom- 
ise to pay the freight as soon as the delivery is complete, such 

1 Bags of Linseed, 1 Black, 108. ii d fating Dished. The question whether 

* New York & N. E. K. R. Co. e. San- tbe law implied a contract to pay the 

dors, 13-1 Mata. S3. freight was not adjudicated. 
The can of Now Haven & Nouliatup- ■ Wallace v. Woodgate, By. & H. 193. 

ton K. R. Co. r>. Campbell, 116 Mass. 104, 
216 



3igitiz eC by GOOgle 



THEIR WAIVER AND LOSS. [§§ 318-820. 

delivery does not amount to a waiver of tbe lien, and the carrier 
may, notwithstanding, maintain replevin for the goods. 1 

Bat there must be some evidence of fraud or triek in obtaining 
possession, or the loss of possession will defeat the lien. In re- 
plevin by !i railroad company, to enforce a lien for freight upon a 
horse, it appeared that the car containing the horse arrived at 
the depot at about eleven o'clock in the morning ; that the con- 
signee, being notified by telephone, asked if tbe horse could re- 
main in the car till the following morning, and gave directions 
about the care of the horse ; that the horse was allowed to re- 
main in the car ; and that in the morning the consignee sent and 
got the horse without paying the freight. It was held that a ver- 
dict finding that the company voluntarily abandoned its lien upon 
parting with possession of the horse would not be reversed on ap- 
peal, and that the action of replevin could not be maintained. 3 

318. A carrier can have no relief in equity on the ground 
of a mistake in fact in delivering the goods to the consignee 
under the belief that he is solvent, when in fact his estate proves 
to be insolvent. It is no fraud on the part of the consignee that 
immediately after the delivery of the goods he dies, and his estate 
proves to be insolvent. 8 

319. The oarrier has a lien upon all the goods carried. The 
consignee cannot insist upon a delivery of any part until tbe -whole 
freight is paid. 4 The carrier may deliver by instalments, if tbe 
goods are in distinct parcels, and the freight charges are divisible ; 
and he may require the freight on each instalment to be paid 
upon the delivery of it. ft 

320. A delivery of a part of the goods is not a waiver 
of the lien upon the remainder for the whole freight. 8 The 
lien is gone upon the part delivered, but remains good upon tbe 

i Bigoloir k. Heaton, 6 Hill, 43, « De~ parte Cooper, 11 Ch. D. 68 ; Potts v. N. 

nb, 498. Y. S.N. E. K. R. Co. 131 Masa. 495,41 

* Geneva, Ithica & Sayre R. R. Co. b. Am. Hep. 147 ; New Haven & Korthamp- 
Sage, 35 Hon, 85. Hardin, P. J., Mid : ton Co. v. Campbell, 128 Mass. 104,35 Am. 
"We Bee no evidence of trick, fraud, or Hep. 360; Lane v. Old Colony & Fall 
overreaching on the part of the defendant River R. R. Co. 14 Gray, 143 j Bogga p. 
to obtain possession." Martin, 13 B. Mon. 239 ; Frolhingham 

* Sean r. Willi, 4 Allen, 213, v. Jenkins, 1 Cal. 42, 52 Am. Dec. £86 j 

* Perez r. Aleop, 3 F. & F. 188. Phils. & Reading R. R. Co. t>. Dows, 15 

* Black v. Ro», 2 Moo. P. C. N. 8. Phils, 101 ; Steinman v. Wilkins, 7 W. & 
377,11 L. T.N. 8.31. S. 466, 468, 43 Am. Dec 254; Fullers. 

1 Sodergren *>. Flight, 6 East, 622 ; Ex Bradley, 25 Pa. St. 120. 
217 



y, Google 



§ 821.] CABRIEBS' LIENS. 

part retained for the payment of tbe entire freight, that upon 
the goods delivered as well as that upon the goods still retained. 
Even if the goods were delivered to the carrier in separate par- 
cels at different times, hot all the parcels are carried under one 
contract, the lien will attach in respect to the charges incurred in 
the carriage of the whole upon any one or more of the parcels ; 
or, in other words, if some of the parcels be delivered, the lien for 
the carriage of these will attach to those not delivered. 1 More- 
over, in such case, the carrier may treat all the parcels as one lot 
of goods, for the purpose of the lien, but not if the goods were 
shipped under several contracts. 3 

The part of the goods remaining will be discharged from the 
lien for the freight upon the part delivered, if such was the inten- 
tion of the parties. 8 

321. If separate contracts be made for the carriage of 
separate parcels of goods, a separate lien will attach to each 
parcel, and the lien is lost by tbe delivery of such parcel. If, 
in such case, several bills of lading have been given, and these 
have been assigned to different persons, the carrier cannot have 
a lien for the freight due under one bill of lading upon goods 
comprised in another which is not held by the same person. 4 

Separate liens upon separate lots of goods carried may, by the 
action of the parties, be changed into a general lien upon all 
the goods. Thus, if several cargoes of coal carried by a railroad 
company are so far distinct subjects of contract that the com- 
pany may deliver and demand freight for one before delivering 
another, and the consignee may demand the delivery of one 
without waiting for the arrival of the whole, there is a separate 
lien upon each cargo for the freight of that cargo, and a lien for 
the freight of several cargoes delivered could not be asserted 
against one cargo not delivered. But if the several cargoes be 
mingled together in bins upon the company's land by direction 
of tbe consignee, so that tbey cannot be distinguished, then all 
the coal will be regarded as delivered together, and the separate 
Hen upon each cargo will be meiged in a general lien upon the 
whole quantity. If, then, portions of tbe coal be taken from 

1 Chase d Wcfllmote, 5 M. A S. ISO. Campbell, 136 Mann. 104, 107, 35 Am. 

3 Bernal p. Pim, 1 Gale, IT ; Sodergren Bep. 360. 

v. Flight, 6 East, 622. ' Sodergren v. Flight, 6 East, 6S2. 
* New Hutch & Northampton Co. r. 

218 



3igitiz eC by GOOgle 



THEIB WAIVER AND LOSS. [§§ 322, 823. 

the bins by the owner, and delivered to purchasers from time 
to time, the railroad company may at any time forbid the taking 
away of any more of the coal without payment of the unpaid 
freight, and may assert a lien upon the coal remaining for the 
freight of all the cargoes. 1 

322. The lien is waived by a contract whereby the car- 
rier gives credit for the freight extending beyond the time 
when the goods are to be delivered. 2 A charter-party which 
provides that a part of the freight shall be paid by the char- 
terer's acceptance, payable three months after delivery to him 
of a certificate of the right of delivery of the cargo, displaces the 
lien for such part of the freight, although tbe charterer had 
become bankrupt before the arrival of the vessel at the port of 
discharge. The subsequent bankruptcy of the charterer can 
neither operate to erase the clause of the charter-party giving 
credit for an instalment of the freight, nor to shorten the term 
of the credit. 3 There can be no lien on a cargo for freight 
where the charter-party provides for the payment of it two 
months after the delivery of it, or in thirty days after the return 
of the vessel to the home port.* 

The taking of bills of exchange or promissory notes for the 
freight, payable at a future time after the time at which the 
goods should be delivered, is a waiver of tbe lien. 6 It seems, 
however, that, if the paper be dishonored before the goods have 
been delivered,, the lien will revive. 8 

323. If the provision be that the freight shall be paid by 
bills on a specified time after delivery, then tbe ship-owner has 
a lien on the cargo until payment by bills in the manner pro- 
vided, tbe delivery of the cargo and the payment of tbe freight 
being concomitant acts.' If the delivery of the cargo be a work 

1 Law r. Old Colony & Fall River R. 4S3 ; Aliager v. St. Katherine'a Dock Co. 

B. Co. 14 Gray, 145. 14 M. & W. 794, 798; Thompson v. 

1 Crawahay t>. Horn fray, 4 B. & Aid. Small, 1 C. B. 328. 
SO; Alaager e. Dock Co. 14 M. & W. 794, * Pickraan v. Woods, 6 Pick. 248. 
.98; Foster p. Colby, 3 H. &.X. 705, 715; * Hewton V. Gulhrfe, 2 Bin K . N. C. 

Chase p. Wcstmtwe, 5 M. & S. ISO, 28 L. 755 ; Jlomcastlc v. Farran, 3 B. & A. 

J. (Ex.) 81 ; Raitt t>. Mitchell, 4 Camp. 497 ; Bunney ■■ Fojntz, 4 B. 4 Ad. 568. 
148, 149 ; Chandler r. Belden, 18 Johns. e Cnnn v. Bolckow, L. R. 10 Ch. 491. 
1J7, l62.9Am.Dec. 193 ; Pinoeyr. Wells, ' Tale e. Meek, 8 Taunt. 280; Yatene. 

10 Conn. 104, 115. Railston, 8 Taunt. 293; Bolnlingk v. In- 

' Bird of Panidinp, !i Wnll. 545; Pin- glia, 3 Kast, 381, 384; Tauvaco v. Simp- 
lify n. Weill, 10 Conn. 104, 1 14. And Bon, L. R. 1 C. P. 363. 
tee Tamraco f. Simpson, 19 C. B. N. S. 219 



3igitiz eC by GOOgk 



§ 324.] carriers' liens. 

of several days, the bills should bear date from the last delivery, 
and to avoid a waiver of the lien the master may in the first in- 
stance land the cargo in bis own name. 

A charter-party provided that freight at a certain rate per ton 
should be paid part in cash at a certain time before tbe voyage, 
could be ended, and part in bills having specified times to run 
from the day on which the ship should arrive in tbe Thames on 
her return upon her homeward voyage. The charterers became 
bankrupt, and neither they nor their assignees tendered tbe bills 
for freight. In an action by the assignees for the goods, it was 
held that the ship-owner was entitled to retain them until pay- 
ment. Abbott, 0. J., delivering the judgment, said; 1 "Upon 
this instrument, therefore, and between the parties to this suit, 
we think the defendant had the possession of the ship and goods 
for the voyage, and a lien on the goods for the stipulated hire of 
the ship, there being nothing to show that the delivery of the 
goods was to precede the payment of that hire in cash and bills, 
as provided for by the deed." 

324. A promissory note or bill of exchange given for 
freight and falling due before the delivery of the goods does 
not discharge the lien, but the carrier may stand upon his lien as 
fully as if the note or bill had never been given. 9 By the gen- 
eral commercial laws, a bill or note given for a precedent debt 
does not extinguish the debt or operate as payment, unless such 
was the express agreement of the parties. The creditor may re- 
turn the bill or note when it is dishonored, and proceed upon the 
original debt, the bill or note being regarded as accepted upon 
the condition of its payment. Tbe rule is different in Massa- 
chusetts, the presumption of law there being that a promissory 
note extinguishes the debt for which it was given. Yet in Massa- 
chusetts this presumption may be repelled by evidence that such 
was not the intention of the partieB. , Upon this ground, it was 
held that under the Massachusetts rule it is not to be presumed 
that a ship-owner, having a lien upon a cargo for the payment of 
the freight, intended to waive his lien by taking the notes of the 
charterer drawn so as to be payable at the time of the expected 
arrival of the Bhip in port. 8 

1 Smile u. Campion, 3 B. & A. 903, * Bird of Paradise, 5 Wall. 545. 
919. See, also, Faith v. Eaal Indian Co. * The Kimball, 3 Wall 37. There wbi 
4 B. ft Aid. 630. eridence that the note) were given for 



3igitiz eC by GOOgle 



THEIR WAIVER AND LOSS. [§§ 325, 826. 

326. There can be no lien for freight when the oontraot 
for its payment ia inconsistent with a lien. If the time, place, 
and manner of payment of the freight are regulated by the 
charter-party in such a manner as to be inconsistent with the 
existence of a lien, then the only way of compelling payment ia 
by an action upon the charter-party. Thus, where a ship was 
chartered at New York for several voyages, partly at the option of 
the charterer, with the agreement that the time of the employ- 
ment should be the full term of fifteen months, with a privilege 
to the charterer to extend it to twenty-four months, the charterer 
paying at the rate of two thousand dollars per month, payable 
semi-annually at New York, it was held that the circumstances 
indicated that the owner meant to waive hia lien npon the cargo 
for freight, and to trust wholly to the personal responsibility of 
the charterer. A libel filed at San Francisco to hold the cargo 
responsible for the freight was accordingly dismissed. 1 

326. There is a waiver of the lien aa against an indorsee 
for value of a bill of lading, when this holds out that the 
goods are to be delivered free of freight. Where a bill of 
lading of goods shipped at Liverpool for Sydney provided for the 
payment of the freight in Liverpool by the shipper one month 

the Accommodation of the ship-owner, and for ita recovery or larger remedies, bj suit, 
were to be helJ over or renewed in case (ban are given in any Other contract? 
they fell due before the arrival of the We confine wedo not ace why. Plncefor 
■hip. the payment of freight, other than that for 
1 Raymond v. Tyson, IT Row. 93. which the cargo ia shipped and discharged, 
In this case, not only the time bat the amounts to a stipulation that freight will 
place of payment wan regarded aa of im- not be demanded at the last, at a condition 
portance in determining whether the lien for the cargo's delivery. All the anthori- 
was waived. " Place for the payment of ties concur in this that place fur the pay- 
money is a substantial pert of any contract ment of freight ia a waiver of a lien upon 
to pay it there. It can be insisted npon the cargo, unlets there are already cir- 
by him who is lo receive it, and cannot be cum stances or stipulations to show that it 
rightfully refused or omitted by him who could not have been meant. It is so be- 
hep to pay it. A broken promise of that cause it ia at variance with the enforce- 
kind gives to the creditor a right of action ment of such a lien, according to the usage 
against the debtor for ita recovery. Why, of trade; and it is ao because, when 
npon principle, should a promise to pay parties toacharter-pany depart from that 
freight at a particular time, and at a place usage by agreeing to pay and receive 
other than (bat where the owner of the freight at another place than that where 
ship has undertaken to deliver the cargo, the common law gives to an owner of a 
be required to be paid elsewhere 1 It ia ship a lien to enforce payment, it must be 
the payer's privilege to pay it there, regarded that the owner had some sufll- 
And, should It not be paid, why should the tUnt reason for not insisting upon his right 
owner nave more than a right of action according to common law." 

221 



, Google 



§ 326.] CARHIEB8' LIENS. 

after the sailing of the vessel, and the bill of lading passed into 
the hands of indorsees for value, it was held that the represen- 
tations of the bill of lading were sach that no lieu could be 
claimed against the consignee at the port of discharge, though 
the master had been advised by the ship-owner that the freight 
had not been paid, and directed not to deliver the goods unless 
the freight should be paid. 1 

The ship-owner cannot claim a lien for freight when this is 
inconsistent with a bill of lading given with his authority. If 
the bill of lading represents the freight to have been paid, when 
in fact it had not been paid, an indorsee for value of the bill of 
lading is entitled to claim that the representation is true ; and 
no lien for freight can be claimed as against him. 3 And so, if 
the bill of lading holds out that the goods are to be delivered 
free of freight to the consignee, there can be no lien for freight. 
Such is the effect of a representation in the bill of lading that 
the freight is payable by the shipper in advance, on sailing or at 
a fixed time afterwards; and though the shipper fails to pay as 
agreed, no lien for freight can arise as against the consignee. 8 
But a mere provision that the freight shall be paid in advance 
does not seem to be inconsistent with a lien, especially if the 

l Kirchner v. Venus, 13 Moore P. C. implied, or why, npon failure of perform- 

361, 391, following How p. Kirchner, 11 ance of the agreement which ihey have 

Moore F. C. 91, and dissenting from Gil- made, the law is to substitute for it 

kison v. Middleton, 3 C. I). N. 8. 134, and another and very different contract which 

Keith b. Graham, 8 £1. & Bl. SOS. they have not made." 

In Kirchner v. Venus, 12 Moore P. C. * Howard v. Tnclter, 1 Bam. & Ad. 

36 1, Lord Kingsdown, delivering the judg- 719; Tamvaco u. Simpson, L. R. 1 C. P. 

men i, said: "No doubt parties who have 363. 

superseded by a special contract the rights * How v. Kirchner, II Moore P. C. 91 ; 
and obligations which the law attaches to Kirchner r. Venus, 19 Moore P. C. 361. 
freight in its legal sense may, if they In the latter case there is a dictum of Lord 
think fit, create a lien on the gouds for the Kingsdown that freight payable in ad- 
performance of the agreement into which ranee is not freight. It is nut money for 
they have entered, and they may do this carrying the goods, but for taking ihi-in on 
richer by express conditions contained in board. But this view is not affirmed in 
the contract itself, or by agreeing that, in later cases. Carver's Carriers of Goods by 
case of failure of performance of that Sea, 6(16. This dictum is commented upon 
agreement, the right of lien for what is due and explained in Allison t. Bristol Marine 
shall subsist as if there had been an agree- Ins. Co. L. K. 1 App. Cas. 909. 
ment for freight. But in such case the On the principal point decided, the cases 
right of lien depends entirely on the agree- of Gllkiaon v. Middleton, 2 C. H. N. S. 
ment, and if the parties hare not, in fact, 134, and Nciah v. Graham, 8 El. & BL 
made inch a contract, it ii very difficult to SOS, are discussed and dissented from in 
understand upon what grounds it can be the Privy Council cases. 



jipismb, Google 



THEIR WAIVES AND LOSS. [§§ 327-831 . 

consignee is himself liable for it. An agreement for prepayment 
of freight does not alter its legal character of freight. 1 

327. No waiver of the lien will be inferred, however, unless 
it is evident from the terms of the contract that it is con- 
templated that delivery is to precede the payment for freight. 1 
Accordingly a stipulation in a charter-party that the freight shall 
be paid within ten days after the return of the vessel to the port 
of departure does not displace the lien on the return cargo, inas- 
much as the delivery of the cargo might be rightfully postponed 
beyond the ten days after the returning of the ship. 3 And so a 
stipulation that the freight shall be paid in five days or in ten days 
after the discharge of the cargo is held not to displace the lien, 
inasmuch as the word discharge, in this connection, is construed 
to mean merely the unloading of the cargo from the ship, and not 
the delivery of it to the owner or consignee. 1 

328. An attachment by the carrier of the property on which 
a lien is claimed for freight is a waiver or forfeiture of the lien.* 

329. A carrier may bring an action for hie freight charges, 
and attach other goods to secure the demand, without discharging 
his lien, especially if the owner bae wrongfully taken the goods 
from him by means of a writ of replevin. 8 

330. A lien is destroyed by the carrier's taking on execu- 
tion the same goods upon which the lien is attached, for he 
thereby gives up possession to the sheriff. 7 

331. The carrier's lien may be defeated by an injury to the 
goods carried, happening by the carrier's fault, to an amount 
larger than bis charge for freight. 8 His right to freight, and to 

' Allison f. Bristol Marine Ins. Co. L.H. to cues plainly importing inch exclus- 

1 App. Cm. 209. ion." Rnejrlrs o. Bucknur, 1 Paine, 358, 

* Faith a. East India Co. 4 B.& A. 630; 363, per Thompson, J., k to the same 

Bird of Paradise, 5 Wall. 945 f Certain effect. 

Logs of Mahogany, 2 Sum. 589,600; How- • The Volunteer, 1 Sam. SSI, 371. 

»nU. Mmcoadrey, 7 Gray, 516, SSI. In * The Kimball, 3 Wait 87, 42; Certain 

this race, Dewey, J., delivering the judg- Logi of Mahogany, S Sum. 539, 600. 

men t of the court, said : " While it is cod- • Wingard v. Banning, 39 Cal. 543. 

reded that the maritime lien for freight * Barnard ». Wheeler, 54 Me. 413. 

may be conaidered aa waived when there ' Jacobs v. Lalour, 5 Bing. 130; B* 

are atipnlatiom in the contract aa 10 time Conmbe, 94 Grant (Out.) Ch. 51 9. 

aad place of payment inconsistent with the * Dyer i>. Grand Trunk By. Co. 43 Vt. 

existence of inch lien, in the CMS* reported 441, 1 Am. Be p. 350 ; Humphreys v. Reed, 

there seems manlfeaied a strong dispoai- 6 Wbart. 435 ; Boj:ga v. Martin, 13 B. 

boa to limit ibis exclusion of each lien Mod. 239. See § SOS. 
223 



3igitiz eC by GOOgle 



§ 332.] CARRIERS' LIENS. 

detain the goods for its payment, results from bis performance of 
the contract to carry the goods. If he fails to carry the goods 
and have them ready for delivery, he cannot claim his freight. 
If through his fault the goods sustain damage to an amount 
exceeding the amount of his charges for freight, he is not entitled 
to demand anything for the carriage of the goods; and if the 
damages be less than the freight charges, the amount he is entitled 
to demand is reduced to that extent. His lien is, of course, 
only coextensive with his right to claim and recover freight. If 
by reason of such injury to the goods he is not entitled to demand 
any freight, he has no right to retain the goods for the pay- 
ment of the freight, and if he does so they may be taken from 
him by replevin. There is no good reason why the carrier's 
liability for damages to the goods accruing through his fauit 
should not be asserted and determined by way of defence to his 
claim for freight, as well as by a cross action. It would be con- 
trary to the analogies of cases involving similar relations of sub- 
ject-matter and parties, to eay nothing of the hardships to the 
consignee, to require him to pay the freight upon the goods, and 
then to trust to the responsibility of the carrier at the end of a 
lawsuit fur the recovery of the damages to the goods sustained 
through the fault of the carrier. 1 

332. The refusal of the consignee to accept the goods 
after they arrive at their destination does not in any way affect 
the carrier's lien, whether this is implied by law or arises under 
an express stipulation of contract. 3 But upon the refusal of the 
consignee to accept the goods and pay the freight, the carrier is 
not entitled to take the goods forthwith back to the place whence 
they where shipped. He is bound to keep them for a reasonable 
time at the place where they were to be delivered, so as to give 
the consignee an opportunity of obtaining the goods upon paying 
the carrier's demand. 8 If the goods are left in the carrier's hands 
without fault on his part, he is bound to take reasonable measures 
for their preservation, and may recover, and have a lien, for the 
expenses so incurred. 4 

1 Dyer p. Grand Trunk By. Co. 4B Vt, coniract provided for a general lien, with 
441, per Barrett, J. power of sale in iatiafaciion of it. 

* Wesifield o. Great "Western By. Co. * Great Western By. Co. v. Crouch, 3 
BS I,. J. Q. B. 276. In thin cast, the H. A N. 18.1. 

• Great Northern By. Co. p. SwaffieM, 
L.R.9Ex. 133. 
224 



3igitiz eC by GOOgle 



THEIR WAIVES AND LOSS. [§§ 382 0-384. 

332 a. The performance of the carrier's contract is a con- 
dition precedent to bis right to demand freight, and consequently 
to his obtaining a lien for the freight. 1 A carrier loses a lien 
by failing to perform his contract. A partial performance is not 
sufficient, unless delivery be dispensed with or prevented by the 
owner. 2 

333. The carrier's lien is lost when the performance of 
his contract becomes impossible. Thus, if a ship be lost on 
the voyage, and the ship-owner baa no means of carrying the 
cargo on to its destination, he has no lien upon it for freight. 3 
But if the ship-owner substantially performs the contract, us by 
trans-shipping the goods to another ehip, lie may still exercise 
his lien, or enable the owner of the other ehip to do so.* And 
so if a ship-owner deliver the cargo at a port which is within the 
terms of the charter-party, though the charterer had ordered the 
vessel to discharge at a port to which it had become impossible 
for her to go, on account of the breaking out of a war, the ship- 
owner does not lose bis lien for his chartered freight. 6 

334. Claiming a general lien, or a lien for other charges, 
is not generally a waiver of a Bpeoifio lien for freight. If 
the carrier claims to detain the goods, not only on the ground 
that he has a lien for freight, but also a lien for other charges, 
and the consignee disputes the latter claim, he should tender 
payment of the freight, for he is not relieved from paying this, 
thougb the carrier improperly joins with it a further claim of 
lien. 6 The carrier's conduct may, however, be such as to do 
away with the necessity of a tender. 7 Where a carrier detained 
three pigs out of a lot carried, to satisfy a balance due on former 
shipments, and the owner was ready to pay the freight on the 
present shipment, but the carrier refused to deliver the pigs until 
payment of the old account should be made, it was held that 
he waived a tender of the freight for the last shipment. 8 

1 Oigood p. Groning, 3 Camp. 466 ; * Matthews v. Gibbs, 30 L. J. Q. B. 65, 

Duthie v. Hilton, L. U. 4 C. P. 138 ; 63, per Cockbum, C. J. 

Palmer b. Lorillard, 16 Johns. 848. * Duncan r. Koster, L. B. 4 P. C. 171, 

* Johnston u. Davia, 60 Mich. 96, 36 N. affirming 3 A. & E. 394. 

W. Bcp. 830: Palmer p. Lorillard, 16 « Scarfeo. Morgan, 4 M. & W.2T0. 

John*. 348, 356; Burrlll v. Cleeman, 17 ' Jones ». Tarteton, 8 M. 4 W. 675. 

Johns. 72. S Jones v. Tarleton, 8 M. ft W. 675, 

1 Nelion v. Association for Protection 677. Alderson, B. : "I think, if tbe de- 

Of Wrecked Property, 43 L. J. C.P.218; fendant absolutely refused to deliver the 

Ex parte Njholm, 43 L, J. Bank. 21. pigs when tbey were demanded, until psj- 

™. i. is 225 



* Google 



§§ 835, 386.] carriers' liens. 

VII. Remedies upon a Carrier' 1 ! Lien. 

335. The oarrier'a lien, like all other common law liens 
founded upon possession, gives him no right to sell the 
property, but only a right to retain it until his charges are paid. 1 
He can enforce his lien indirectly by obtaining judgment for his 
charges and levying the execution upon the goods. But a sale 
without process is a conversion ; the measure of damages for which 
is the market value of the goods, deducting the amount of the 
lien. 2 

The right of possession under the lien continues although the 
debt itself be barred by the statute of limitations. The posses- 
sion, however, even for that length of time, confers no title to 
the property upon the bailee. The owner may at any time de- 
mand the property, and is entitled to it upon tendering the amount 
due upon the property under the lien. 

A ship-owner cannot, of his own motion, Bell the goods in order 
to pay the freight, except by virtue of a statute. His usual and 
proper remedy is by libel in rem before an admiralty court, by 
whose decree bis rights may be protected. 8 

336. Id almost every State and Territory there are stat- 
utes which enable Barriers to sell goods upon which they 
have liens for freight, and by means of these statutes the pas- 
sive common law lien ia converted into an active lien. These 
statutes are of two classes. One class in terms provides a rem- 
edy by sale for the enforcement of the carrier's lien. And this 
remedy is usually the same as that provided for the enforcement 
of other liens For these provisions, see the chapter on Remedies. 
The other class in terms provides for the sale of unclaimed goods, 

meet by the plain tiff, not only of the 1 Liekbarrow *. Mason, 6 East, SI; 

freight for lhat particular cargo, bat also Jones t>. Pestle, I Htra. 556; Mulliner 

of the freight due on a former account, v. Florence, 3 Q. B. Div. 484; Hunt p. 

and which, si now appeara by the finding Haskell, H Me. 339, 41 Am. Dec 389; 

of the jury, the defendant vu not enti- Fox c. McGregor, II Barb. 41 ; Saltus b. 

tied to demand, that must be considered Everett, SO Wend. 207, 39 Am. Dec. 

■a a waiver of any tender of the present 541. 

■urn really doe, and which (he plaintiff * Brigga v. Boston A Lowell K. R. Co. 

was ready to pay ; it waa equivalent to G Allen, 246, 83 Am. Dec 616 ; Stapira 

aaying to the plaintiff', ' Do what yon will, v. Bradley, S3 Conn. 167, 60 Am. Dec 

tender what you will, it ia of no use; I 630. 

will not receive it unleaa yon pay the old * Sullivan v. Park, 33 Me. 438 ; Plant 

account aJjo.'" o. HaikeU, M Me. 339,41 Am. Dec 369. 



3igitiz eC by GOOgk 



REMEDIES. [§ 887. 

and for the payment of the carrier's charges and expenses out of 
the proceeds. The result is substantially the same in both cases; 
the carrier is enabled to dispose of the goods and to get the 
amount due him. Although the provisions of the latter class of 
statutes are widely different in the several States, and it is impos- 
sible to make an adequate general statement of them, inasmuch 
as they relate only incidentally to liens, it does not seem desirable 
to give them in detail, and so they are only referred to. 1 

337. In making a sale under a statute of unclaimed 
goods, to pay the freight and charges, a carrier is held not only 
to good faith in making the sale, but to reasonable diligence in 
ascertaining and giving notice of the contents of the packages 
sold. But, while he is required to examine all external marks 
and indications of the contents, he is not required or authorized 



i Allium*: Code 1886, §j 1181, 1182. 
This siniuie, though affording an adequate 
remedy at Uw for tbe enforcement of a 
carrier's lien, by allowing a Mis to pa; 
charges, doea not, in lhe absence of ex- 
press proviiion, take away any equitable 
remedy which may have previously ex- 
isted. Cross v. Memphis &. C. II. R- Co. 
(Ala.) II So. Rep. 480. 

California: Codas & Stats. 1885, §§ 3153- 
31.16. See Civ. Code, g 2144. 

Colorado: Annot. Stats. 1691, §§ 45G2- 
4SS6. 

: G. S. 1B88, SS 3778-3783. 
: K. Code, 1874, p. 667,55 1-3. 

Georgia : Code 1882, fj 208-1 n-2084 b. 

Idaho: R. S. 1887, §§ 1160-1163. 

IlHnoia ; R. S. 1869, eh. 141. 

Indiana : R. S. 1B88, §§ 9900-!903. 

lavs : 1 R. S. 1888, £g 3364-3369. 

Xajiiu : G. S. 1889, £f, 3665-3672. 

Maine : R. & 1883, ch. 62, §J 8-10. 

Maryland: Pub. O. L. 1888, an. 23, 
55 180, 182. 

Kaaaachaietta : Pub. State. 1882, ch. 
96, 55 1-9. 

Miebig-an: Annot State. 1682, ch, 58, 
§S 3073-2086; Lawa 1889, p. 296. 

Minnesota: G. 8. 1891, $4316. 

Mltaiatippi; R. Cods 1880, cb. 38, 
5 10SS. 

Hebraeka: Corap. Stats. 1985, cb. 92, 

H i-ia- 



ltavada: G. S. 1883, SS 4964-1969. 
Hew Hampshire : P. S. 1891, ch. 160, 
55 26-98. 
Few Jersey: Rev. 1877, pp. 591, S92, 

SS 1.3. 

Hew Meiico : Coiup. Laws, 1884, 5 2670. 

Hew York: R. S. 8th ed. 1889, p. 2519. 

Sorts Dakota: Codes, 1883, J 122B a. 
b, e. of Civil Code, 

Ohio: R. S. 1893, §9 3221-3231. 

Oklahoma: Comp. State. 1890, pp. 136, 
137. 

Oregon: Annot. Laws 1892, 95 3712- 
372S. 

Pennsylvania : Brightly 'a Purdon'sDij*. 
18B3, p. 266, 55 6-8, also p. 1059, §8 1-3. 

Rhode Island: P. 8. 1882, ch. 139, 
85 5-7. 

Sooth Carolina: G. S. 1882, cb. 51, 
}{ 1663-1666. 

Booth Dakota: Codes 1883,5 1228, a, fc, 
t, of Civil Code. 

Tennessee: Code 1884, SS 2788-2791. 

Tezu: R. Civ. State. 1888, ch. 2, acta. 
286-289. 

Utah: Comp. Lani,18BS, 55 2958-2960. 

Vermont: Rev. Lawa, 1880, ch. 184, 
SS 4063-4067. 

Virginia: Coda 1887, SS ISSl. 1222. 

Waahington: G. S. 1891,55 1699-1704. 

Viawr&ria : Annot. Stats. 1889, S3 1637- 
1649. 



y, Google 



§§ 338, 339.] CABMERS' LIENS. 

to open tbe packages for the purpose of ascertaining their con- 
tents. If, knowing, or having reason to know, the contents of 
the packages, be withholds his knowledge or belief, and sells val- 
uable goods to a favorite having superior knowledge, at a nomi- 
nal price, this is a fraud which vitiates tbe sale, and renders him 
and the purchaser liable in damages to tbe owner. 1 

338. If, however, the goods are of a perishable nature, 
in the absence of the consignee, it is a matter of necessity for the 
carrier to sell them. But in such case be sells, not by virtue of 
his lien, but by virtue of his trust relation to the owner, and in 
his interest. Out of the proceeds be may retain his freight and 
charges. To justify the sale, it must be shown that the goods 
were perishable, and that the sale is one of absolute necessity in 
tbe interest of the owner. 2 

339. A statute of the United States" provides that when- 
ever the collector shall be notified of a lien for freight on any 
goods imported, he shall bold the same until it is shown that the 
freight has been paid or secuied. Under this statute the consignee 
should first tender the amount of freight be admits to be due, 
and if declined, he should tender a sufficient bond conditioned to 
pay all freight that may be found to he due, or that may be ad- 
judged due by any court of competent jurisdiction. Should this 
be declined, proof of these tenders should be made to the collec- 
tor, who, if he finds the bond adequate to secure the carrier, 
should release tbe goods on the deposit with him, for the use 
of the carrier, of the bond originally tendered. 4 

1 Nathan if. Shiver*, 71 Alt. Ill, 46 Packet Co. 9 Hcisk. 564, !4 Am. Rep. 
Am. R. 303. 339. 

» Arthur v. Schooner Capitis, 3 Story, • B. S. S »B1 . 
81,97; Rankin h. Memphis & Cincinnati * Wjman ■>. Lancaatcr, 32 Fed. Hep. 
730. 

228 



3igitiz eC by GOOgk 



CHAPTER VIII. 

LIENS OF CORPORATIONS OK THEIR MEMBERS' SHARES. 

L How created, 375-392. | III. Subrogation of sureties to such liens, 

IL What Jabta are secured, 393-400. ■ 401, 403. 

I IV. How lout or waived, 403-417. 

I. How Created. 

375. A corporation has no lien at common law upon the 
shares of its members for any indebtedness to the company. 1 The 
. reason sometimes given for this rule is that secret liens are re- 
pugnant to the general policy of the common law. But there is 
in fact no sufficient ground in law upon which to rest a claim to 
such a lien. Such possession as a corporation has of its members' 
shares does not give it a possessory lien for their debts. 2 The 
corporation really has no possession of stock that it has issued to 
its members except in case they transfer it to the corporation. 
The corporation is not a debtor to its members for the stock it 
has issued to them, so that no right can arise against them by 
way of set-off. 

A farther reason against such a lien is that it would operate as 

1 Ncale v. Janncy, 2 Cr. C. C. 188 ; sey v. Manofactnrurs' & Mechanics' Bank, 

Driicoll b. West Bradley & Cary Manuf. 10 Pick. 414, 431, per Shaw, C. J. 

Co. 59 N. Y. 96, per Folger, J. ; McMur- Pennsylvania : Steamship Dock Co. v. 

rich d. Bond Dead Harbor Co. 9 U. C. Q, Heron, 33 St. 380; Merchant*' Bank 1. 

B. 333. Shouse, 103 Pa. St. 486, 16 Hep. 443. 

Kentucky : Dana v. Brown, 1 J. J. Other State* : Hurst v. Union Nat 
Marsh. 304; Frankfort Turnpike Co. v. Bank, 63 Me. SOS; Vansands v. Middle- 
Churchill, 6 Mon. 427 ; Fitzhugh v. Bank sex Co. Bank, 36 Conn. 144 ; Farmers' & 
of Shepherds? ilte, 3 Mon. 136. Merchants' Bank v. Wasaon, 48 Iowa, 

Louisiana: New Orleans Nat. Banking 338, 30 Am. Rep. 39B ; Mobile MnL In*. 

Aeso. i'. Willi, 10 Fed. Kep. 330 ; Bryon Co. b. Cullom, 49 Ala. 553 ; Bank of Holly 

v. Carter, 22 La. Ana. 98; Byrne c. Union Springs v. Pinson, 58 Miss. 431, per 

Bank, 9 Rub. 433. George, J., 38 Am. Rep. 330; Heart s. 

afasaaohruetti : Mesa, Iron Co. v. Hoop- State Bank, 2 Dev. Eq. Ill; People tr. 

er.TCnsh. 183; Sargent 0. Franklin Ins. Crockett, 9 Cal. 113 ; William* r.Lowe, 4 

Co. 8 Pick. 90, 19 Am. Dec. 306 ; Nee-mi th Neb. 383, 398, per Gantt, J. 

v. Washington Bank, 6 Pick. 324 ; Hue* ' Fitihngh v. Bank of Shepherds t ilia, 
3 Mon. 136. 



* Google 



§ 376.] LIENS OF CORPORATIONS. 

a restraint upon the transfer of stock, in the nature of a restraint 
of trade, and such a restraint is not allowed except by force of an 
express provision of statute. 1 

The Hen of a corporation upon its members' shares prevents a 
transfer by the shareholder, but it gives the corporation no right 
of sale, 3 

376. Lien of corporation by statute. — Inasmuch as the 
common law implies no Hen in favor of a corporation upon its 
shares for the debts of its shareholders, and inasmuch as it is not 
only reasonable but desirable that there should be such a lien, it 
has become usual in statutes or charters creating moneyed or com- 
mercial companies to provide expressly for such a lien. 

In some States there are general laws declaring this lien, and 
in sonte instances prescribing the mode of enforcing the lien. 3 
These statutes provide that the transferees of stock shall take it 

1 Farmers' & Merchants' Bank v. Was- creditors given credit with notice, or pur- 
■on, 48 Iowa, 336, 30 Am. Rep. 398. chasers at public or private sale pnrchas- 

9 Tete v. Farmers ' & Merchant*' Bank, ing with notice. Code 1SBS, § 1999. 
i Brew. 308. Minnesota : A corporation has at all 

* In Alabama, corporations hare a lien times a lien upon the slock or property of 
upon the stuck standing in the name of a its members invested therein for all the 
debtor, and ma; enforce it after thirty debts due from them to such corporation, 
days' notice to the debtor, by selling the which may be enforced by advertisement 
same at public auction, ten days' notice and sale in the manner provided for sell- 
of sale being first published. Code 1S86, inj> delinquent stock. Q. S. 1891, §§ 3643, 
5 1674. 2657. 

A mortgage, pledge, or other lien upon Hew York: Railroad corporations have 
stock ia void as to bona fide, creditor* and a lien upon the shares of subscribers to 
purchasers unless a transfer is registered stock for the amount of the unpaid calls. 
within fifteen dais. Code 1876, % 3044. Laws 1881, ch. 468, % 19. 

Colorado: Banks organised under the In Utah a private corporation has a lien 
statutes of the State have a lien upon the on the amount paid in by a stockholder 
stock and dividends of shareholders for. upon bis subscription, and the dividends 
their debts. G. S. 1883, jg 971, 374. thereon for any balance due for the stock. 

Conneetiout : Every corporation has at Comp. Laws 1888, % 3376. 
all times a lien upon all the stock owned Vermont : A private corporation has a 
by any person therein for all debts due to lien npon the stock of its members, and 
it from him. Q. 8. 1888, g 1933. their property invested therein, for debts 

Florida : No shares of a private corpo- dne from them to the corporation. It. 
ration shall be transferred until all preri- Laws 1880, g 3396. 

ons assessments thereon shall have been Wait Virginia. : Noshare shall be trans- 
fully paid in. II. 8. 1893, g 3131. fcrretl without the consent of the board of 

Georgia : The by-laws of a corporation directors, until the same ia fully paid up, 
ma; create a lien upon the shares of other or security given to the satisfaction of the 
property of the stockholders in favor of board for the residue remaining unpaid. 
the company; such lien is binding upon R. 8. 1887, cb. S3, g 99. 
the corporators themselves, and upon all 



jipismb, Google 



HOW CREATED. [§ 377. 

subject to all the liabilities of the stockholders who make the 
transfers ; or forbid transfers so long as the holder of the shares 
is indebted to the company; or declare that the corporation slmll 
have a paramount lien upon all shares to secure the debts of the 
shareholders to the corporation. 1 

377. By virtue of the general authority to regulate the 
transfer of shares conferred upon corporations by statute or 
special charter, many authorities hold that corporations may en- 
act by-laws creating liens upon the shares of their members ; and 
that it matters not that this statutory authority to regulate the 
transfer of shares is conferred in the most general terms. 2 Witli- 

1 Mechanics' Bank v. Seton, 1 Pec. 399, owe to (he company, and that the company 

30V; Brent e. Bank of Washington, 10 might vein and detain the stock as secu- 

I'ct. 596, S14 ; National Bank o. Watson- rity for such indebtedness. In a contest 

town Bunk, lo.i U. S. 317, 320 ; Union between the assignees in bankruptcy of 

Bank v. Laird, 2 Wheat. 390. Ponnsylvs the shareholder and the company, the by- 

nia ; Mount Holly Paper Co.'s App. 99 law was adjudged good apon the ground 

Pi.St.M3. sTevYork: Stebbins v. Phce- that the legal interest in all the stock was 

nix F. Ins. Co. 3 Paige, 350 ; Arnold t>. in the company. 

Suffolk Bank, 27 Barb. 424; Leggeit B. Alabama: Cunningham o. Ala. L. In*. 

Bank of Sing Sing, 24 N. Y. 283. Oslo I Co. 4 Ala. 652. The charier gave the di- 

Conaot v. Seneca Co. Bank, 1 Ohio St. rector* power " to make rules concerning 

398. Kentucky : Bank of America it. Me- the transfer of stock." 

Neil, 10 Bush, 54; Kenton In*. Co. v. Bow- California: Jennings v. Bank of Cftli- 

man,15Am. &Eng. Corp. Caj. 578; Ken- forma, 79 Cal. 323, 21 Pat. Rep. 852. 

ton Inf. Co. r. Bowman, 84 Ky. 430, I S. " Our opinion proceeds upon the proposi- 

W. Rep. 717. Maryland: Hodges i: Plant- tinn thai the acceptance of the certificate 

era' Bank, 7 G. & J. 306 ; Reuse if. Bank of of stock containing the condition in ques- 

Corumerce, 14 Md. 371, 74 Am. Dec. 53fi. tinn, and the subsequent borrowing of 

1 Child v. Hudson's Bay Co. 2 P. Wm«. money, without anything to exclude the 
207. The decision of this cue as report- idea that the condition was to govern, cre- 
ed, 1 Str. 615, was upon the ground that ates an implied contract from which an 
the corporation had asort of set-off. Brent equitable lien arises. This was the ground 
o. Bank of Washington, 10 Pet. 596, 616 ; of decision in the Connecticut case, which 
Pendergast r. Bank of Stockton, 2 Saw. expressly states that it did not proceed Ou 
yer, 103 ; In re Bachman, 12 N. Bank, the ground of usage." Per Hayne, J. 
Reg- 223. Connecticut : Van snn da v. Middlesex 

In Child e. Hudson's Bay Co. 3 P. Co. Bank, Sfl Conn. 144. 
ffmi 307, power was given to the Hud- Delaware. : McDowell v. Bank of Wil- 
son's Bay Company by their charter to mington, 1 Harr. 27, 2 Del. Ch. 1, In the 
make by-laws fot the better government latter report, however, it appears that 
of tbe com jinny, and for the management the by-law was authorized expressly by 
of their trade, and they made a by-law the act of Incorporation, 
that, if any of their members should be Georgia: Tattle e. Walton, 1 Kelly, 43. 
indebted to the company, hi* company Louisiana: Bryono. Carter, 32 La. Ann. 
stock should be liable in the first place for 98. See New Orleans Nat. Banking Asso. 
the payment of snch debts a* he might v. Wiltx, 4 Woods, 43, 10 Fed. Rep. 330. 



3igitiz eC by GOOgk 



§ 377.] liens or corporations. 

oat any by-law, corporations may issue certificates containing a 
condition to the effect that transfers npon the books shall be sub- 
ject to the indebted ness of the stockholders to the corporations ; 
and such condition creates an implied contract from which an 
equitable lien arises. 1 

The stockholders are regarded as having an implied power to 
enact by-laws giving the corporation a lien upon its members' 
shares, either by providing in express terms that the company 
shall have a paramount lien for any indebtedness of its members, 
or by prohibiting a transfer of shares upon its books while the 
holder is indebted to it. 

But it is conceded in some of these decisions that a by-law 
made upon such authority does not bind others than the mem- 
bers of the corporation whose privilege and duty it is to know 
its rules and regulations, so far as these affect their interests; 1 
or purchasers and creditors having notice of such lien. 8 

Miisiasippi : Bank of Holly Springs v. that It is well settled by reason and >u- 

Pinson, 5B Mill. 421, 38 Am. Rep. 330. thorily, that the power to make by-laws 

atlaaonrl ; Mechanics' Bank v. Mer- to regulate the management of the busi- 

c hints' Bank, 45 Mo. 513, 100 Am. Dec. new of the association is sufficient to jus- 

3S8 ; St. Louis Perpetual Ina. Co. o. Good- tify a by-law creating a lien on the stock ; 

fellow, 9 Mo. 149; Spurlock v. Pacific II. that the power to regulate the transferring 

II. Co. 61 Mo. 319, 326. or manner of transferring stock is enffl- 

HewYork: Leggett ». Bank of Sing dent to anthorlie a by-law creating inch a 

Sing, 94 N. Y. 283 ; McCready v. Rumaey, lien ; that the power to regulate the trans- 

6 Duer, 574 ; Stehbins v. Phoenix Ins. Co. ferring or manner of transferring of stock 

3 Paige, 3S0, Sfil ; Rosen hack v. Salt il sufficient to authorize a bylaw that the 

Springs Nat. Bank, S3 Barb. 495; Arnold stockshsll be transferable only at the bank, 

d. Suffolk Bank, 97 Barb. 494. or on the books ; and, in that case, nmil 

Pennsylvania: Reading F. Ins. ft Trust auch transfer, the purchaser would take 

Co. e . Beading Iron Works (Pa. St.), 91 only an equitable, not a legal, tide, and iub- 

Atl. Rep. 170 ; Tete v. Farmers' & Mer- ject to any clsim of the hank, by charterer 

chanta" Bank, 4 Brew. 308; Morgan p. by-law, or valid usage, or agreement; that 

Bank of North America, 8 8. & R. 73, 11 a majority, at a regular or legally called 

Am. Dec. 575 ; Ceyer ». Western Ina. Co. meeting, when a qnorrnu is present, is suf- 

3 Pitta. 41, 45. In this case the charter ficient to enact by-laws; that a by-law 

declared the stock assignable "subject to Informally adopted may be subsequently 

such restrictions and limitations as the ratified, and, without any record of adop- 

Btockboldere, at a general and regular tion, may be proved by the neage and acts 

meeting, may adopt." of the hank, and parties dealing with It" 

Hhodo Island : Lock wood v. Mechanics' * Vansaods v. Middlesex Bank, 96 

Nat. Bank, 9 R. I. 308, 335, 1 1 Am. Rep. Conn. 144 ; Jennings p. Bank of Califor- 

953. This is one of the latest and ablest nia, 79 Cel. 593,91 Pac Rep. 852, 19 Am. 

decisions sustaining this view. After an St. Rep. 145. 

elaborate examination of the authorities, * M'Dowell v. Bank of Wilmington, 1 

Potter, J., said : " We consider, therefore, Harr. S7. 

232 ' Steamahip Dock Co. v. Heron, 59 Pa. 



HOW CHEATED. [§ 878. 

Under a statute which provides that shares shall he trans- 
ferable in such manner as may be agreed upon in the articles of 
association, the directors have no power to adopt a by-law pro- 
hibiting a transfer of shares by one indebted to the corporation, 
although the corporation in its articles of association delegated 
to the board of directors the power to make by-laws for the man- 
agement of its business. 1 

378. Notice where by-law rests upon inferential author- 
ity. — If, however, sncb a lien is not created or authorized in 
special terms, but only by inference, notice of the lien by recital 
in the certificate may be essential to make the lien effectual. 
Thus, where the charter of a corporation provided in general 
terms that the mode and manner of transferring stock might be 
regulated by by-laws, and a by-law was enacted that no transfer 
of stock should be made while the stockholder was indebted to 
the company, and that the certificate should contain notice of the 
lien, it was held that a purchaser of stock without: actual notice 
of the lien was not bound by the by-law, and took the stock free 
of the lien. 1 The purchaser in such case was not affected with 
constructive notice through the charter that there would be any 
by-law preventing a stockholder indebted to the corporation from 
disposing of his stock, but only with notice that there might be 
some regulation of the mode and manner of the transfer ; and 
the purchaser had a right to preaume that the regulation referred 

St. 380, per Thompson, J. ; Lockwood o. not in the nature of legislates enact- 

Mechanics' Nat. Bank, 9 It. I. 308, 330, merits, to far as third persons are con- 

11 Am. Kep. 253; Morgan e. Bank of cemed. They Fire mere regulations of the 

North America, 8 S. & R. 73, II Am. Dec corporation for the control and manage- 

579 ; Tattle d. Walton, 1 Kelly, 43. The mentof ill own affairs. They are self-im- 

.[uEBtion whether a land Jide purchaser poaed rules, resulting from an agreement 

without notice of auch by-law wonld ba or contract between ihe corporation and 

protected against the lien was left node- its members to conduct the corporate 

cided. business in a particular way. They are 

1 Bank of Attica v. Manufacturer*' & not intended to interfere in the least 

Traders' Bank, 20 N. Y. 501. The qnea. with the rights and privileges of others 

tion, whether a statutory power to deter- who do not subject themselves to their 

mine the manner in which a transfer on influence. It may be said with truth, 

the books may be made includes a power therefore, that no person not a member 

lo forbid it in case the shareholder is in- of the corporation can be affected in any 

debted to the corporation, was not deter- of his rights by a corporate by-law of 

mined in this case. which he has no notice" Per George, J. 

' Bank of *llciiy Springs v. Pinion, 58 And see Lee ■>. Citfxens' Nat. Bank of 

Miss. 431,435. SB Am. Eep. 330. Piqu*,, 8 Cln. Sup. SBS. 

"By-laws of private corporations are 



* Google 



§§ 379, 380.] LIENS OF CORPORATIONS. 

to was one announced in the certificate that it was transferable 
at the company's office, in person or by Attorney, and was not 
bound to inquire further. 

379. But a statute conferring or authorizing suoh a lien is 
constructive notice of the lien to all persons affected by it. 
When a lien in favor of a corporation is created by statute, 
either general or special, it is not necessary for the corporation 
to make any claim to such lien, or to give any notice of it in its 
certificates of stock, in order to maintain the lien either as against 
the shareholder or his pledgee or purchaser. 1 

380. In a few cases it has been said that a usage of a 
corporation to claim a lien upon its members' stock for any 
indebtedness to it, or an informal regulation to that effect, made 
known to a purchaser of stock at the time of his taking a trans- 
fer, may have the effect of giving the corporation such a lien, 2 
Thus, in a case in Connecticut where neither the charter nor the 
bylaws of a bank contained any provision in regard to such a 
lien, but the bank had from its organization, a period of fifteen 
years, used a form of certificate which provided that it was trans- 
ferable at the bank, subject to the indebtedness and liability of 
the holder to the bank, the holder of such a certificate, having 
obtained discounts at the bank, afterwards made an assignment 
for the benefit of his creditors, and his assignee claimed the right 
to have the stock transferred to himself ; and, in a suit against 
the bank upon its refusal to allow such transfer, it was held 

1 First Nat. Bank it. Hartford Life &. ledge of its usage in that regard, and 

An. Ids. Co. 4 Conn. 22; Sogers v. Hunt- said : " A course of dealing, a usage, an 

ingJun Bank, 12 S. & R. 77 ; Grant v. understanding, a contract, express or im- 

Mechanics' Bink, 15 S. & R. U0; Sewall plied, is lbs law of the parties and a law 

v. Lancaster Bunk, 17 S. &■ R. £85 ; Steb- to them, provided they are not repugnant 

bins v. Thanix Ins. Co. 3 Paige Ch. 350, to the charter or the laws of the land. . . . 

331 ; McCready v. Rumsey, 6 Duel, 174; The bank had an undoubted right to say 

Downer t>. Zanesville Bank, Wright, 477 ; to any stockholder, 'We discount your 

Farmers' Bank r. Iglehart, 6 Gill, GO; note; bnt, remember, until it ia paid, we 

Bohmer v. City Bank of Richmond, 77 shall hold your stock in security. You 

Va. 445. shall not be permitted to transfer it until 

1 Morgan ti. Bank of North America, you pay us.' . . . Call this answer of the 
S S. A R. 73, II Am. Dec. 575. In this bank what you please, — lien, set-off, legal 
case it appears that there whs no by-law or equitable, pledge, retainer, stoppage, 
or written regulation of the board gir- course of dealing, general undertaking, 
inga lien upon the stock, bnt the court usage, contract, express or 'implied, — it 
held Ibat a lien arose from the borrow, is a bar, in law and equity, to this Be- 
ing of money from the bank with know- tion." 

231 



3igitiz eC by GOOgle 



HOW CREATED. [§ 381. 

tbat the provision in the certificate was binding upon the share- 
holder by reason of his acceptance of the certificate in that form, 
audi acceptance being equivalent to an agreement that the stock 
should be subject to the Hen. 1 His assignee also was regarded 
as estopped to deny that the stock was held subject to the lien 
created by such assent. 

It is even declared tbat a by-law, though unauthorized by stat- 
ute or charter, is as binding on all the members of the corpora- 
tion, and others acquainted with their mode of doing business, 
as is the charter itself, or any public law of the State. 3 

But of course such a by-law, though established by usage and 
binding upon the members of the corporation, can have no force 
or effect as against others, unless knowledge of tbe by-law be 
brought home to them. It is not binding upon a purchaser or 
pledgee without notice, 8 nor upon a judgment creditor of the 
stockholder.* 

381. That such a lion can only be created or authorized 
by statute is the conclusion in which the latest and best author- 
ities on this point generally concur, although there is still some 
conflict of opinion. A corporation cannot, under the authority 
given to it to regulate transfers of stock, create or declare by 
by-law a secret lien in its favor upon its stockholders' shares 
to secure their debts to the corporation. 6 Such a by-law can be 
made only in pursuance of a general statute, or of some pro- 
vision in its special charter. 6 A by-law made simply in pursu- 
ance of an incidental authority must be a reasonable one, and a 
by-law which interferes witli the common rights of property, and 
the dealings of third persons with reference to it, is not consid- 
ered a reasonable one. 7 A by-taw creating a lien upon its mein- 

1 Vansand* o. Middlesex Co. Bank, 26 v. West Bradley & Car? Manuf. Co. 59 

Conn. 144. N. Y. 96; Carroll v. Mnllanphy Sav. 

1 Geyer v. Wemcrn int. Co. 3 Pitts. Bank, 8 Ho. App. 249 ; Chouteau Spring 

41,46, per Williams, J. Co. v. Harris, SO Mo. 382; Merchant*' 

* People o. Crockett, 9 Cal. 112. Bank v. Shouae, 16 Rap. 442 ; In r« Long 

* Bryon v. Carter, 22 La. Ann. 98. Island R. Ji. Co. 19 Wend. 37, .12 Am. Dec. 

* Anglo-California Bank v. Grangers' 429 ; Byrne l>, Union Bank, 9 Bob. 433 ; 
Bank, 16 Rep. TO ; 6 Am. & Eng. Corp. Steamship Dock Co. u. Heron, 52 Fa.' St. 
Can. 543 ; Moore u, Bank of Commerce, 280. 

52 Mo. 377; Brvon v. Carter, 22 La. ' Driscoll v. West Bradley & Cary 

Ann. 98. Manuf. Co. S9 N. Y. 96 ; Moore t>. Bank 

* Kew Orleans Nat. Banking Associa- of Commerce, 52 Mo. 377, 379. 
tion v. Wiltz, 10 Fed. Hep. 330 ; Driscoll 

235 



;y Google 



§§ 382-884.] LIENS OF CORPORATIONS. 

bers' stock is certainly a very serious hindrance to dealings in 
such stocks, tor there would be no safety in a transfer of the 
certificate only, without an actual transfer upon the books; and, 
unless the right of the corporation is declared upon the face of its 
certificates of stock, the lien would also be a secret one, and as 
such objectionable. 1 

Moreover, the natural and obvious purpose of a power given 
to a corporation to regulate the transfer of its stock is simply to 
enable the corporation to determine who are its members, who 
is entitled to take part in its meetings and vote, and who are 
entitled to receive its dividends! 

382. Suoh a lien may be conferred by statute upon a cor- 
poration already organized in respect of shares already issued 
for debts already incurred. In such case the lien is created by 
the statute immediately upon its going into effect, so that an 
indebtedness to the corporation from a shareholder existing at 
the time will be secured in preference to a pledgee to whom the 
shareholder has delivered the certificate with a power of attorney 
for its transfer, provided the corporation has received no notice 
of such pledge of the certificate* 

383. An option given by statute to a corporation to pro- 
hibit a transfer by a member indebted to the corporation does 
not of itself create a lien. There is no lien in such case until 
the company or its directors have exercised the option conferred 
by the statute and declared a lien 8 . 

It would seem that a corporation having authority to enact 
such a by-law could not enact one which should have a retro- 
spective effect.* 

384. Under the National Banking Aot of 1864, a bank can- 
not have a lien on its own stock held by a debtor, although 

1 Chouteau Spring Co. v. llama, SO as members liable to assessment and en- 
Mo. 382. " This power, however, of reg- tilled to -vote at corporate meetings and 
ulating transfers of stock confers no to receive dividends, and it is construed 
corporate authority to control its trans- accordingly, the corporation being left to 
ferabiiity by prescribing to whom the exercise the power or not, at its own 
owner may tell, and to whom not, or pleasure, as being alone interested in the 
upon what terms. Tbs truth is, the pro- matter." Per Leonard, J. 
vision Is considered as being intended ex- * First Nat. Bank v. Hartford Life A 
clusively for the benefit of the Company, An. Ins. Co. 45 Conn. Ti. 
in order thai they may, by proper regula- • Perrine v. Fireman'! Int. Co. 91 Ala. 
tions, provide themselves with the means S7S. 
of knotting who they are bound to treat * People v. Crockett, 9 Cal. Its. 



3igitiz eC by GOOgle 



HOW CREATED. [§§ 885, 886. 

its articles of association and its by-laws are framed with a 
direct view to giving it such a lien ; for, aside from the fact that 
the act of the preceding year contained an express provision for 
auch a lien, which was omitted in the substituted act of 1864, it 
was considered that Buch a lien would be inconsistent with the 
general policy of the act which prohibits loans upon the security 
of shares of its own capital stock. 1 

386. Under some circumstances this lien may cover the 
liability of one who is merely an equitable shareholder. 
The by-laws of an incorporated savings bank, enacted under 
statutory authority, declared a lien in favor of the bank on the 
stock of any shareholder who might be indebted to it in any 
manner. On the dissolution of a partnership owning stock in 
the bank, the continuing members of the firm bought all the 
interest of the retiring members and assumed all the partnership 
debts. Tlie new firm became the equitable owners of the stock. 
It was held that the lien of the bank might be enforced upon 
such stock for the liabilities of the new firm incurred in subse- 
quent transactions with the bank. 3 

386. Shares whioh equitably belong to a debtor of the cor- 
poration, as well as those standing in his own name, are sub- 
ject to the lien in its favor. But if the officers of a corporation 
knowingly permit shares to be transferred to a mere nominal 
holder, it seems that a bond fide purchaser from him, even with- 
out a transfer on the books of the company, will be entitled to 

> Bank i). Lanier, 11 Wall. 369 ; Bui- sod's Nat. Bank Casts, 523, per Virgin, 

laid d. Bank, IB Wall. 589 ; National J. ; Lee v. Citizens' Nat. Bank, 2 Sup. Ct. 

Bank of Xenia t>. Stewart, 107 U. S. 676 ; Cm. 29S, 306. Contra, ate Vansauds u. 

New Orleans Nat. Banking Association i>. MiJiikucx Co. Bank, 26 Conn. 144 ; In re 

Willi, 4 Woods, 43, 10 Fed. Rep. 330; Bigelow, 9 Ben. 168, 1 N. Bank. U. 667 ; 

Evausvillo Nat. Bank v. Metropolitan Knight v. Old Nut. Bank, 3 Cliff. 420 j In 

Nat. Bank, S Bis*, 627, 10 Am. Law lieg. re Dtrokereon, 4 Bis*. 227; Evanstille 

( N. S.) 774 ; LoniBTille Bank v. Newark Nat. Bank v. Metropolitan Nat. Bank, 2 

Bank, 11 N. Bank. R. 49, 62; Delaware Bis*. 527. 

LiW.R.Ii. Co. v. Oxford Iron Co. 38 * Planters' & Merchants' Mat. Ins. Co. 

N. J. Eq. 340. The earlier cases in this e. Selma Savings Bank, 63 Ala. 585, 594. 

State, Yonng v. Vough, 23 N. J. Eq. 325, " We can perceive no good reason, and 

and Mattison v. Young, 24 N. J. Eq. 535, we are not aware of any authority, reqair- 

overruled. Second Net. Bank of Loois- ing it to limit the lien to debt* owing the 

»illu p. Nat. State Bank, 10 Bash, 367, 14 bank by the holder of the legal title only, 

Am. L. Reg. (N. S.) 2S1 ; Rosenback v. excluding snch as may be due from the 

National Bank, 53 Barb. 495 ; Conklin v. owner of the complete eqnitable title." 

Second Nat. Bank, 45 N. Y. 655 ; Hagar Per Brickell, C. J. 
v. Union Nat. Bank, 63 Me. 509 ; Thorou- 



* Google 



§§ 887-389.] LIENS OF CORPORATIONS. 

relief against the lien of the company for a debt due from the 
real owner. 1 If a certiBcate of stock be assigned with a power 
of attorney to complete the transfer upon the books, while the 
corporation might have a lien against the stockholder in whose 
name the shares were standing, or against the equitable owner, 
' if the rights of others dealing with the equitable owner in good 
faith are not interfered with, yet the corporation cannot assert its 
lien against an equitable owner after he has transferred the cer- 
tificate to a purchaser in good faith. 

387. Though the shareholder be only the holder of the 
legal title, the equHable ownership being in another, the lien may' 
be enforced for the debt of the shareholder of record. 2 

388. As a general rule, the equitable assignee of a certifi- 
cate of stock can have no other or greater rights than his 
assignor had; and, therefore, if the corporation had a lien as 
against the assignor, the assignee cannot obtaiu a transfer of the 
legal title upon the books without paying the amount for which 
the stock is affected with a lien, 8 

The corporation can assert its lien against the stockholder of 
record, although he had already pledged the certificate before 
incurring the debt for which the corporation claims the lien, pro- 
vided the corporation had no knowledge of the pledge at the time 
the stockholder became indebted to it. 1 

389. Even if the corporation has notice of an equitable 
pledge of the shares, it may have priority by reason of pro- 

1 Stebbina v. Phrenix F. Ina. Co. 3 Bant of Cat. 79 Cal. 338, SI Pnc Rep. 

Paige, 350 ; Planters' L Merchants' Mut. 852 ; Farmers' Bunk v. Iglchari, 6 Gill, 

Ina. Co. v. Selina Bar. Bank, 63 Ala. 585, 60; Reese v. Bank of Commerce, 14 Md. 

594. ' 271, 74 Am. Dec. 536 ; Bishop v. Globe 

The language of lome decisions would Co. 133 Mass. 133. 

imply thai the lien could only be Mterted * In re Peebles, 3 Hughes,394; Plait v. 

against the atockholder of record. Helm c. Birmingham Axle Cu. 41 Conn. 2B5, MB. 

Swiggett, 12 Ind. 194. "In contemplation of law, the statute 

* New London & Brazilian Bank v. was known topetitioner when he accepted 

Brocklcbank, L. R. 31 Cli. 13. 303 ; Bur- the certificate ; it wia to him as if it bad 

ford v. Crandall, 3 Cr. C. C. 86 ; Young been embodied therein ; it was in ihe na- 

v. Vough, S3 N. J. Eq. 333. tore of a qualification or restriction of his 

' Union Bank e. Laird, 3 Wheat. 390, equitable interest; It was notice to him 

393; Brent », Bank of Washington, 10 that if, after a reasonable time had elapsed. 

Pet. 596, 616 | McCready t. lturaaey, 6 he refrained from giring any notice of his 

Ducr, 574 ; Bank of Utica v. Smalley, 9 interest in the stock to the corporation, a 

Cow. 770 ; Bohmer v. City Bank of Rich, statute lien might come 

mond, 77 Va. 445; Taylors. Weston, 77 My moment." Per Pardee, J. 
Cal. 534, 30 Pac. Rep, 62; Jennings t>. 



3igitiz eC by GOOgle 



HOW CREATED. [§§ 890, 391. 

visions of the articles of association, the terms of which are 
known to the pledgee. The articles oE association of a company 
provided that it should have a first and paramount lien on every 
share for all debts due from the shareholder to the company. A 
shareholder deposited his shares with bis banker as security for 
a balance due him on current account, and notice of the deposit 
was given to the company. 1 The certificates stated that the 
shares were held subject to the articles of association. It was 
held that the company had priority over the bankers in respect 
of a debt due from the shareholder to the company, although the 
debt became due after notice of the deposit of the shaves with 
the banker. The decision was placed upon the ground that, by 
the articles of association, a contract had been entered into be- 
tween the company and the shareholder whereby the company 
was to have a first lien on his shares for any debt due him ; 
and that by this contract a priority was conferred upon the com- 
pany as against all persona claiming only an equitable interest 
in the shares, and having notice of the articles of association; 
the deposit of the shares without a transfer creating only an 
equitable interest. 3 

390. The lien of a corporation, when conferred by general 
law or charter, may be availed of in a State other than that in 
which the corporation was organized, when a suit is brought 
against the corporation in such other State by a person claiming 
to he an equitable assignee of shares of its stock, to recover dam- 
ages for refusing to make a transfer upon the books. The rights 
and obligations of the stockholders of a corporation as between 
them and the corporation are to be determined by the laws of the 
State under which the corporation was organized. 8 

391. Corporations have an equitable lien upon the divi- 
dends of their shareholders to secure their debts. The rule 
against an implied lien in favor of corporations upon the shares 
of their members does not apply in respect to dividends declared 
upon such shares. Dividends are considered as so much money 
in possession of the bank belonging to the stockholder ; and it 
is not inconsistent with any provision of the National Banking 

1 Bradford Bulking Co. v. Briggi, 31 not claim priority after notice of (be ad- 

Ch. D. 19 ; affirmed in Miles v. New Zea- ranee by the banker. 
lend Allord Eacaie Co. 3a Ch. D. 96G. * Socie'te' Generals de Pari) v. Tram- 

The former case overruled 39 Ch. D. 149, ways Union Co. 14 Q. B. D. 424. 
where it m held tint the company could * Bishop n. Globe Co. 13S Maw. IIS. 



y, Google 



§§ 392, 898.] LIENS OF CORPORATIONS. 

Act, or in conflict with any principle of public policy, that the 
bank should have an equitable lien upon such dividends. 1 The 
dividends, when payable, are a debt owing by the corporation 
to the shareholder, and in a suit by the shareholder for such debt 
the corporation could Bet off any debt owing to the corporation 
by the shareholder. 3 

392. The lien is not confined to stock owned by the stock- 
holder at the time the debt was incurred, 3 unless the language 
of the statute or charter giving the lien suggests such a restric- 
tion. If the charter provides that the corporation shall "at all 
times have a lien upon the stock or property of its members in- 
vested therein, for all debts due from them to such corporation," 
the lien attaches to stock of members whenever afterwards ac- 
quired during the indebtedness. There is a lien whenever the 
indebtedness and the ownership of the stock concur. 

II. What Debts are Secured. 

393. The word " indebted," in statutory provisions for 
liens in favor of corporations, applies as well to debts to be- 
come due as to those actually due and payable. 4 Thus the lien 
applies in favor of a bank that has discounted a note or bill on 
which a shareholder is liable, though the note or bill has not 
matured.' So the liability of a shareholder for an unpaid bal- 

1 Hague b. Daudeson, 2 Ex. 7*1 ; Ha- 41 ; Si. Louis Perpetual Ins. Co. ». Good- 
gar v. Union Niu. Bank, 63 Me. 509 ; fellow, 9 Mo. 149. 

Thompson's Nat. Bank Cub. 523 ; Sargent In Grant v. Mechanic*' Bank, tupm, 

r>. Franklin Ins. Co. 8 Pick. 90, 19 Am. Tilghman, C. J., said : " Where wordsare 

Dec. 306 ; Stebbins v. Phcenix F. Ins. Co. not technical, their meaning ia, in general, 

3 Paige, 350; Bates v. N. Y. Ids. Co. 3 best ascertained by common parlances. 

Johns. Cas. 238 ; St. Louis Perpetual Ins. Laws are made for the people, and should 

Co. ». Goodfellaw, 9 Mo. 149 ; Grant ■>. be expressed in language which they un- 

Mechanics' Bank, I !i S. & It. 140 ; Farm- derstand. Now the word ' indebted ' has 

era' Bank v. Iglehart, 6 Gill, GO; Mc- not acquired a technical signification, 

Do well o. Wilmington Bank, 1 Harr. and, in common understanding, means a 

27. sum of money which one has contracted 

* Si- Louis Perpetual Ins. Co. f. Good- to pay another, whether the day of pay- 
fellow, 9 Mo. 149; Hague Union Nat. tnent be come or not. Even in law l»n- 
Iifttik, S3 Me. 509; Merchants' Bank t>. guage we Bjwnk of debilum in preatnti, mi- 
Shouse, 102 Pa. St. 48S, 16 Hep. 442. tendum in /uluro,— a present debt, to be 

8 Schmidt v. Hennepin Co. Barrel Co. paid in a future time. So, in act of as- 

35 Minn. 511, 29 N. West. Rep. 200, 15 sembly language, a debt signifies money 

Am. & Eng. Corp. Cas. 576. payable at a future time." 

1 Grant v. Mechanics' Bank, 15 S. & H. * Brent e. Bank of Washington, 10 Pel. 

140 ; Gayer v. Western Ins. Co. 3 Pitts. 596, 616 ; In re Bachmin, IS Nat. Bank 
240 



3igitiz eC by GOOgle 



WHAT DEBTS ABE SECURED. [§ 394. 

ance of his subscription for the shares is a debt within the mean- 
ing of such provision for a lien, even before such balance of the 
subscription has been called. 

A provision that shares of a bank shall not be transferable 
unless the shareholder shall discharge all debts due by htm to 
the company was held to embrace all debts of the shareholder, 
whether payable presently or in the future. The object of the 
provision was to protect and secure the bank, and to accomplish 
this the lien must cover debts not matured. 1 

There is an English case, not to be relied upon, however, 
where, under articles of association which provided that the com. 
pany should have a lien upon all shares of any member for any 
money due the company, Master of the Rolls Jessel held that the 
lien was limited to moneys due and payable from a shareholder 
to the company, and was not applicable where the indebtedness 
was a mere acceptance of a bill of exchange. 1 

But if the words used to describe the debts for which there 
may be a lien imply more than a mere indebtedness, as where 
the words used are " debts actually due and payable to the corpo- 
ration," the debts contemplated are such as are due at the time 
the lien attaches, and not those payable in future, such as notes 
and bills afterwards to mature. 3 

394. Where the statute authorizing a lien is general in its 
terms and applies to all debts due the corporation, the Hen 
will not be restricted to a particular debt or a particular class 
of debts. Thus, under the Companies Act of England, the pro- 
vision that "the company may decline to register any transfer 
of shares made by a member who is indebted to them," is not 
limited to cases where the member is indebted for calls, or other- 
wise indebted in respect of the particular shares proposed to be 
transferred, but enables the company to decline to register the 
transfer, if the member is indebted on any account whatever. 4 

But a provision of statute or charter, giving a corporation a 
lien to secure any indebtedness to it from a shareholder, does 
not authorize the corporation to make an accommodation loan to 

Keg. 523 ; Rogers e. Huntingdon Bank, 'fan Stockton Malleable Iron Co. 9 

13 S. ft B. 77 ; Sewall v. Lancaster Bank, Ch. D. 101. 

17 8. ft B. S8S ; Leggett e. Bank of Sing * Beam c. Bank of Commerce, 14 Hd. 

Sing, 94 N. Y. 383, 284. 371, 74 Am. Dec. 536. 

1 Leggett e. Bank of Sing Sing, 34 » Ex parte Stringer, 9 Q. B. D. 436. 
N. T. 283, 284. 

VOt- I. 16 241 



* Google 



§§ 395-397.] LIENS OF CORPORATIONS. 

a shareholder, where it is not within the power of the corporation 
to make such a loan. The lien is in aid of the legitimate powers 
of the corporation, and cannot be held to imply a sanction to 
a division of the corporate assets to accommodation loans to a 
stockholder. 1 

395. Where the language of the statute declaring the lien 
is broad enough to embrace every form of indebtedness (o 
the company which a member may incur, the courts will not 
confine the lien to debts due for the shares, or for calls upon 
them, but will extend it to debts due generally from the share- 
holder. The object in creating the lien is the security of the 
corporation, and there is no good reason for limiting general 
words embracing an indebtedness of any kind to an indebted- 
ness of a special kind, namely, that for shares, or calls upon 
them. 2 

396. If the by-law of a corporation creating a lien upon 
its stock is broader in terms than the statute authorizing it, 
the by-law will be restricted in its operation to the terms of the 
statute. 3 Thus, where a statute gives a Hen upon the shares of 
a stockholder for the balance due the corporation upon his sub- 
scription to the stock, the company has no lien upon the stock 
for any other debts due the company, though such a lien be de- 
clared by a by-law to that effect. 4 Even if such a by-law has 
any effect, it can only apply to the interest of the debtor stock 
holder after the lien of the stock debt is satisfied. 6 

397. A lien for calls upon shares applies only to the shares 
upon which the calls are made, and not to other paid up shares 
of the shareholder. Under a statute which provided that no 
shareholder should be entitled to transfer any share, after a call 
had been made in respect thereof, until he should have paid the 
call, and should have paid all calls for the time being due on 
every share held by him, the court of Queen's Bench held that 
the company had no power to hold paid up shares as a security 

1 Webster V. Hone Machine Co. M £62; and sac Presbyterian Congregation 

Conn. 394, S Ail. Hep. 482. v. Carlisle Bank, 5 Pa. St. 345. 

« Uogeis v. Huntingdon Bank, IS 3. & * Petersburg Savings & Ins. Co. o. 

B. 77 ; Motile Mut. Ins. Co. v, Callora, Lumsden, 73 Va. 327. 

49 Ala, 55S ; Cunningham v. Ala. Life * Petersburg Savings & Ins. Co. e. 

Int. 4 Trust Co. 4 Ala. 652. Lumsden, 75 Va. 327. 

1 Eabn v. Bank of St. Joseph, 70 Ho. 
242 



3igitiz eC by GOOgle 



WHAT DEBTS ABE SECURED. [§§ 898-400. 

for the amount of a call on other shares. 1 A like decision was 
made in Virginia under a statute providing that stock should 
not be transferred without the consent of the company until all " 
moneys payable to the company on such stock should have been 
paid. a 

398. Debt of partnership or of a Burety. — A by-law pro- 
hibiting a transfer of shares by a member indebted to the cor- 
poration applies where the only indebtedness is by a partnership 
in which the shareholder is a copartner. 8 

It applies as well where the liability of the shareholder is that 
of a surety or indorser, as where his liability is that of a principal 
debtor. 4 

399. Debt of joint trustee. — Where the articles of associa- 
tion of a banking company provided that it should have a para- 
mount lien on the shares of any shareholders for all moneys 
owing the company from him alone or jointly with any other 
person, and trustees invested in shares of the company which 
were transferred into their joint names, and one of the trustees 
was a partner in a firm which was indebted to the company, it 
was held that the bank had a lien on the shares for this debt 
which must prevail over the title of the ceitui que trust ; for the 
lien was within the express terms imposed by tbe articles of as- 
sociation as a condition upon which one might become a member 
of the company. 8 

400. Upon the bankruptcy of a stockholder whose shares 
are subject to a lien to the corporation, the corporation is en- 
titled to appropriate the proceeds of Buch shares to the payment 
of the debt, and to prove against the bankrupt's estate for any 
balance of the debt not paid. This is the general rule ; though 
under the insolvent laws of some of the States it is held that, after 

1 Hnbbers.tr a. Manchester, Sheffield & * St. Louie Perpetual Ins. Co. v. Good- 

Lincolnshire Ry. Co. L. R. 2 Q. B. 59. fellow, 9 Mo. 149 ; Legfielt v. Bank of 

Otherwise, however, in Subbing v. Pbce- Sing Sing, 24 N. Y. 283, Allen J., diasent- 

niz F. In*. Co. 8 PaigB, 3S0. ing; West Branch Bank v. Armstrong, 

■' Shenandoah Valley K. R. Co. u. Grif- 40 Pa. St 278 ; Schmidt u. Hennepin Co. 

nth, 76 Va.913; Code 1873, ch. 57, § 26. Barrel, &c Co. 85 Minn. 511, 29 H. W. 

* Geyer k. Western Ins. Co. 3 l'itis. Rep. 200; McLean r. Lnfajette Bank, 3 

41, per William*, J. ; Mechanics' Bank v. McLean, 587 ; McDowell <i. Bank of Wil- 

Earp, 4 Rawle, 3S4 ; Arnold r. Suffolk mington, 1 Harr. 27. 

Bunk, 27 Barb. 424; In n Bigelow, 2 * New London & Brazilian Bank v. 

Ben. 469 ; German Security Bank v. Jcf- Brocklebank, 21 Ch. D. 302. 
feraou, 10 Bush, 326. 



* Google 



§§ 401, 402.] liens or corporations. 

the corporation has applied the proceeds of the shares under its 
lien, it is postponed until the general creditors have been mads 
equal out of the general estate by receiving an equal percentage, and 
then the residue is distributed pro rata among all the creditors. 1 

III. Subrogation of Sureties to such Liens. 

401. A surety upon a debt of a stockholder, secured by a 
lien upon his stock, upon paying the debt is subrogated to 
the creditor's lien. 3 The debt to the corporation is the object of 
the lien, and for which it is security, and equity lays hold of this 
security for the benefit of the surety. The equitable right of the 
surety in such case attaches at the time the lien of the corpora- 
tion commences, although the corporation may not know of the 
existence of his suretyship. The surety's right of subrogation 
does not depend upon his giving any notice to the corporation, but 
upon the fact of his suretyship and his payment of the debt. 
Notice is important only for the purpose of preventing the cor- 
poration from allowing a transfer of .the stock upon payment of 
the debt in ignorance of the surety's claim.* 

If a corporation having a Hen upon stock to secure a debt upon 
which there is a surety allows the stockholder to transfer his 
shares to secure another debt, or permits the stock to be sold and 
the proceeds applied to the payment of another debt, the surety 
is discharged. 4 

Where a corporation, though having the power to declare a 
lien, has neglected to do so, and consequently has no lien, it loses 
no right against the surety by allowing the debtor to make a 
transfer. There is nothing in such case to which the surety can 
be subrogated. 6 

402. la case a corporation has a lien to secure several 
debts, upon one of -which there is a surety, the question arises 
whether the surety upon that debt, upon paying it, is subrogated 
to the lien, so as to be entitled in equity to have the shares 
applied to the discharge of that debt in priority to the other debts 

1 German Security Bank v. Jefferson, Tough, 23 N. J. Eq. 325; Kubnsi'. Wiat- 

10 Bush, 326 ; Northern Bank v. Keiier, moreland Bank, a Wain, ISO, 

1 Duv. 169. * Klopp v. Lebanon Bank, 46 Pa. St. 88. 

* Klopp v. Lebanon Bank, 46 Pa. St. * Knhni v. Weatmoreland Bank, 3 

88; Petersburg Saving* & Jns. Co. v, Watta, 136. 

Lomfden, 79 Va. 327, 340; Young v. ' Perrins v. Finnan's Ins. Co. SS Ala. 
576. 

244 



3igitiz eC by GOOgk 



HOW WAIVED OB LOST. [§ 408. 

afterwards incurred. In a case in Rhode Island, where the char- 
ter of a bank provided that the stockholders should at all times 
be liable for the payment of debts due the bank, it was declared 
that this provision was not adopted with the view of securing an 
indorser, and it was held that the corporation could not be com- 
pelled to apply the shares to the payment of such indorsed debt 
in preference to any other debt due to it, although such other 
debt might be of later date. 1 This decision would seem to be 
correct in case the corporation had no notice at the time the sub- 
sequent debt was incurred that there was a surety upon the prior 
debt. But, in case the corporation should allow the stockholder 
to incur a further debt after a surety had paid a prior debt and 
had claimed the right of subrogation, it would seem that the cor- 
poration should not be allowed to avail itself of its lien to the 
detriment of the snrety ; and it would also seem that, if the cor- 
poration knew of the relation of suretyship at the time the obli- 
gation was incurred, it could not afterwards allow the stockholder 
to incur a further indebtedness to the detriment of the surety. 
The surety has an interest in the lien from the time the obli- 
gation is incurred, and it may reasonably be presumed that he 
incurred the obligation on the strength of the lien. 3 

IV. Mow Waived or Lost. 

403. This lien, though declared by statute, may be waived 
by the corporation entitled to it, and the waiver may be made 
by an officer having the general management of its daily busi- 
ness: thus the cashier of a bank may waive the lien in behalf of 
the bank ; s and he does this by entering a transfer upon the 

1 Cross n. Pbceiiix Bank, 1 Ti. I. 39, exceeding the amonnt of stock, and for 
41. "Itwai intended to aecurethe pay- which ill additional security would ba 
meat of such debts of each stockholder needed, the pledge would be wholly inep- 
u became insecure, whether by the fn.il- plicable. This never conld have been the 
ure of principal or surety, or by the fail- undemanding, either of the legislature, or 
are of both; and men intent la inconstst- of the stockholder*, on becoming such j 
est xith an application of the pledge nor conld the Buret; of an indebted stock- 
regulated by a priority of date. Such a holder indulge the expectation, with any 
role would make the provision operate degree of confidence, that such could be 
only Tor the benefit of the surety, where the conatrnction of inch a provision." 
security would not be needed until the 5 See Rogers v. Huntingdon Bank, IS 
indebtedne-a exceeded the amount of the S. & R. 77. 

■lock ; and if in ell such caste the surely * National Bank o. Watsoutown Bank, 
was sufficient, tbe pledge would be of no 105 U. 3. 217; Case w. Bank, 100 U. S- 
nlne to tbe bank, whilst aa to all debts 446. 

245 



3igitiz eC by GOOgle 



§ 404.] LIENS Or CORPORATIONS. 

boobs of tbe batik. Mr. Justice Matthews, delivering the opin- 
ion of the court, said : J " A complete transfer of the title to the 
stock upon the books of the bank, it is not doubted, would have 
the effect to vest it in the transferee free from any claim or 
lien of the bank. The consent of the bank, made necessary to 
such transfer, is tbe waiver of its rights, as its refusal would be 
the assertion of it. The transfer, when thus consummated, 
destroys the relation of membership between the corporation and 
the old stockholder, with all its incidents, and creates an original 
relation with the new member, free from all antecedent obliga- 
tions. This legal relation and proprietary interest, on which it 
is based, are quite independent of the certificate of ownership, 
which is mere evidence of title. The complete fact of title may 
well exist without it. All that is necessary, when the transfer 
is required by law to be made upon the books of the corporation, 
is, that the fact should be appropriately recorded in some suita- 
ble register or stock list, or otherwise formally entered upon its 
books. For this purpose, the account in a stock ledger showing 
the names of the stockholders, the number and amount of the 
shares belonging to each, and the sources of their title, whether 
by original subscription and payment or by derivation from others, 
is quite suitable, and fully meets the requirements of the law." 

404. Whether, after notice to a corporation of an equita- 
ble transfer of the shares, it can acquire a lien upon them as 
against the equitable assignee, is a question which has already 
been considered. 3 But it is certain that a corporation cannot 
claim a lien after it has permitted its debtor to transfer the shares 
upon its books, so aa to give the assignee not merely tbe equita- 
ble but the legal title, unless tbe corporation in express terms, 
known and assented to by the assignee, reserves a lien at the 
time of the transfer. 8 But tbe assent of a corporation to a gen- 
eral assignment of a debtor for the benefit of his creditors, sub- 
ject to preferences authorized by law, does not amount to a 
waiver of a lien by the corporation on the debtor's shares, for 

1 National Bank v. Watson town Bank, Conanl c. Seneca County Bank, 1 Ohio 

105 U. 8. SIT. St. 398; Newberry c. Detroit & Lake 

4 Bradford Banking Co. v. Brigga, 29 Superior Iron Co. IT Mich. HI. 

Ch. D. 149, 10 Am. & F.ng. Corp. Cm. * Dill w. Fine Hirer Bank, 49 N. H. 

120, overruled in 31 Ch. D. 19 ; and SN 300; Hodges v. Planters' Bank, 7 G. ft J. 

Ncsmith v. Washington Bank, 6 Pick. 334 ; 306. 
Bank of America o. McNeil, 10 Btiib, 54 ; 
246 



3igitiz eC by GOOgle 



HOW WAIVED OB LOST. [§§ 405, 406. 

the lien is a preference authorized by law, and, moreover, tbe 
assignee in a voluntary assignment for the benefit of creditors 
stands in no better situation than the assignor. 1 

405. Notice to an officer of a corporation who has a general 
charge and management of its business is notice to the corpo- 
ration. Thus, notice to the cashier of a bank of an outstanding 
equity is notice to the bank. 3 His knowledge that a stock- 
holder's shares had been pledged by delivery of the certificate to 
secure his note to a third person should pat him upon inquiry, 
even after the maturity of that note, to ascertain whether the 
note had been renewed ; for a renewed note should be secured by 
the original pledge, and if the bank under such circumstances 
should make a loan to the stockholder, even after the maturity 
of the original note for which the shares were pledged, the lien 
of the bank would be subject to the pledge to secure the renewed 
note. 8 v 

But notice to an employee of a corporation who has no power 
to transact its general business with third persons, and who is 
well known to have no such power, does not affect the corpora- 
tion ; and a waiver of a lien by such an employee does not bind 
the corporation. 1 A corporation is not estopped to assert a lien 
by the fact that, on a stockholder's presenting a certificate for 
transfer, the person in charge of tbe transfer-book promised to 
make a transfer and issue a new certificate as soon as an officer 
whose signature was necessary should return, when it does not 
appear that such person had any general authority, or any know- 
ledge of the stockholder's indebtedness. 5 

406. A corporation ia estopped to claim a lien as against 
one who has been induced to make a loan upon a pledge of its 
stock to a shareholder by representations of the officers of the 
company that the stock was unincumbered, and that he could 
safely make a loan upon it. 6 

1 Dobbins v. Walton, 37 Ga. 614, 95 the bank to notify it of the renewal of the 

Am. Dec. 37. note. 

■ Bank of America w. McNeil, 10 Bosh, « Kenton Insurance Co. p. Bowman, 81 

54; Connecticut Mat. Life In*. Co. v. Ky. 430,1 S. W. Rep. TIT, 15Am. &Eng. 

Scott, S) Ky. 540, 549. Corp. Co*. 578. 

* Bank of America n. McNeil, 10 Bnah, * Bishop v. Globe Co. 135 Mass. 13!, 
54. 

The pledgee wu under no obligatioi 



;y Google 



§ 407-411.] LIENS OF COBPORATIOHB. 

407. Waived by taking a transfer of the shares. — A cor- 
poration having a lien by its charter upon the shares of a stock- 
holder (or bis indebtedness to the corporation waives (his Hen 
by taking a transfer of the stock as collateral security for such 
indebtedness. The taking of the transfer shows that the corpora- 
tion did not rely upon the lien. 1 

408. A corporation does not waive its lien by taking 
other security for the debt, as, for instance, by taking sureties 
upon it or a mortgage upon other property ; for a creditor may 
lawfully take and hold several securities for the same debt, and be 
cannot be compelled to surrender either until the debt is paid. 3 

409. A lien acquired by a corporation for an indebtedness 
incurred after a stockholder's shares have been attached or 
levied upon by a creditor, and service of such attachment or levy 
has been made upon tbe company, is subject to the lien of such 
attachment or levy. 8 If the liability of the shareholder was 
incurred before, though the debt does not become payable till 
after, the attachment or levy by the creditor, the lieu of the cor- 
poration is superior to that of the creditor. 1 Moreover, if tbe 
debt secured by the lien be renewed, the lien attaches to tbe 
renewed debt, though the debtor's shares be attached before or 
after the renewal.' 

410. "Where a bank waived its charter -right of lien upon 
a stockholder's shares for a period of six months, and within 
that time tbe stockholder pledged his shares for a debt, the right 
of the bank does not attach again immediately upon the expira- 
tion of that period, unless the debt for which tbe pledge was made 
has been paid, but is subordinate to the right of the pledgee until 
the debt is paid or the pledge released. 8 

411. The lien is not waived by permitting a transfer of a 
part of the shares. Though the debt be for a less sum than 
the value of the debtor's stock which the corporation holds a lien 
upon, it may hold all his shares till the debt is paid. It is not 

1 McLean ». Lafayette Bank,3 McLean, * Geyer b. Western Ina. Co. 3 Pills. 41. 

987. • Sewall v. Lancaster Bnnk, 17 8. & R. 

1 Union Bank v. Laird, 2 Wheat 390 ; ?BS ; West Branch Bank V. Armstrong, 

In re Morrison, 10 N. Bank. Res;. 105 ; 40 Pa. St. 378. 

Mechanics' Bank v. F.arp, 4 Rawle, 384 ; s Sewall t>. Lancaster Bank, 17 S. 4 R. 

Kenlon Insurance Co. ». Bowman, 84 Ky. 385. 

430; I So. West, Rep, 717, 15 Am. & Eng. * Bank of America v. McNeil, 10 

Corp. Caa. 578. Bush, 94. 

248 



3igitiz eC by GOOgk 



HOW WAIVED OB LOST. [§§ 412-414. 

bound to appropriate part of the shares as security for the debt 
and transfer the rest. 1 Of course the corporation may permit the 
debtor to transfer part of his stock, and by such action it will not 
waive itB lien upon the shares still remaining in his name. 3 

412. A usage may operate against a lien which the by-laws 
of a corporation enact in its behalf. Thus, where by the by-law 
the consent of the directors of a corporation was required to a 
transfer of stock by a stockholder indebted to it, but in practice 
such cases were never brought before the board, it was held that 
a transfer made without such consent, but according to the usage 
of the company, was effectual, and passed the title to the stock 
unincumbered by a lien. 3 

413. The faot that the corporation allows its debtors cer- 
tificate of stock to remain outstanding does not amount to a 
waiver of its lien. When the lien is created by proper statutory 
authority, the corporation may assert the lien, although the share- 
holder has pledged his certificate to secure a prior loan. If the 
pledgee chooses to hold this certificate, and not obtain a transfer 
to himself upon the books of the company, he does so at his own 
risk. The corporation is not bound to call for a surrender of the 
certificate when it makes a loan to a shareholder. It does not 
waive its lien by leaving the certificate outstanding.* 

414. The issuing of a certificate of shares upon which a 
corporation has a possible right of lien does not amount to 
a waiver or abandonment of that right,* though the certificate 
nukes no reference to the lien, but declares that the shares are 

1 Sewall v. Lancaster Bank, 17 S. 4 E. mind, and, by pursuing with steadiness 

*85 ; and see Union Bank v. Laird, S the law of their existence and individu- 

Wheal. 390. ality, they exposed themselves to the keen 

' First Nat. Bank ». Hartford Life & and deep sarcasm of Burke. The present 

Annuity Ins. Co. 45 Conn. £2. In Pres- case is a pregnnnt instance of the facility 

byterian Congregation v. Carlisle Bank, with which they bring IhcmtelvM within 

* Pa. St. 315, 351, the fact that tha bank the condemnation of whatever is magnani- 

couKDted to a tranafer of part of the mows, jnat, and manly in our nature." 

lhares whs nppnretitly one ground of the * Chambcrtburg Ins. Co. t>. Smith, 11 

court's refuMl to permit the bank to as- Pa. St. ISO. 

lert a lien to the remainder r but the blind « Boh wr v. City Bank, 77 Vn. 445 ; 

prejudice of the court against all banks and see Piatt v. Birmingham Axle Co. 41 

deprives the decision of any value it Conn. 255. 

night otherwise have. This for a curios- * Petersburg Saving" & Ins. Co. o. 

ity: "Since the day* of Lord Bacon, who Lumsden, "5 Va. 3:!7, 310; Hussey u. 

proniBlgsted the idea, banks, then in their Manufacturers' & Mechanics' Bank, 10 

infancy, have been odious to the common Pick. 415. 

249 



jipismb, Google 



§§ 415-417.] LIENS OF C0RP08ATI0KS. 

transferable only at the corporation's office, personally or by at- 
torney, on surrender of the certificate. 1 

416. It the transaction in which a corporation seeks to 
enforoe a lien was unauthorized by its charter, and was a per- 
version of its corporate powers, it confers no right upon the cor- 
poration to enforce the lien. 3 

416. Of course, if the debt is discharged, the lien is gone. 8 

417. The lien is not lost though the right of action for 
the debt be barred by the statute of limitations, for the statute 
does not cancel the debt, but merely takes away the right of ac- 
tion for it; just as, in the case of a mortgage or pledge securing 
such a debt, the mortgage or pledge remains valid, and may be 
enforced, although the right of action upon the debt is barred. 4 

1 Reese n. Bank of Commerce, 14 Md. * Gejern.WeMernIns.Co.8KtU.il ; 
871,74 Am. Dec 536. Farmers* Bank v. Iglehart, 6 Gill, 50; 

2 White's Buck t>. Toledo Ins. Co. IS Brent e. Bank of Washington, 10 Pet. 
Ohio St. 601. 59G ; Jones on Mortgages, § 1303; Jones 

3 Fanners' Bank e. Iglehart, 6 Gill, on Chattel Mortgages, 5 773 ; Jones on 
50. Hedges, J Ml. 

250 



3igitiz eC by GOOgk 



CHAPTER IX. 



LIENS OF PACT0B9, BROKEBS, CONSIGNEES, AND MEKCHANTS. 



I. In general, 418-155. 
IL To whet property they attach, 426- 



III. What indebtedness ia secured, 445- 



IV. For advances on crops, 453-159. 
V. When the liens attach, 460-465. 
VL Waiver and losa of the liens, 166- 

471. 
VII. Enforcement of the liens, 473-482. 

I. In General. 
418. It is a general common law rule that a factor or con- 
signee has, in the absence of any express agreement, a lien 
upon the goods in his hands, and upon the proceeds of tlie 
same, as his security for all advances made, or acceptances given 
to bis principal in the business of his agency, or connected with 
the goods consigned to him. The law implies or infers the lien 
from the relation between the parties. 1 The factor's lien is a gen- 

1 Krtigor a. Wilcox, 1 Ambler, 252, 254 Mansfield in Godin v. London Assurance 
(1755). "Before this case it WH certainly Co. 1 Burr. 489, and Foxcroft v. Devon- 
very donbtfnl whether a factor hud a lien uhire, 2 Burr. 931, 936 ; by Lord Kenyon 
and could retain for tbo balance of hi* and Mr. Justice Ashurst, in Walker u. 
general account," remarked Lord Mane- Birch, 6 T. R. 258, 262 ; and by Mr. Jus- 
field in Green v. Farmer, 4 Burr. 9214, ties Duller in Lickbarrow v. Mason, 6 
2218(1768). The case of Kruger c. Wil- East, 21, 23. 

cox was decided by Lord Hurdwicke, Alabama : Barnettu. Warren, 2So. Rep. 

Chancellor. He examined four merchant* 457. 

upon the custom and usage of merchants California and Idaho : A factor or cow- 
in regard to such a lien. " All the four mission merchant has a general lien, de- 
merchants, both in their examination in pendent on possession, for all that i* due 
the cause and now in court, agree that, if bimaatach.uponallarticleaof commercial 
there is a course of dealings and general value that are intrusted to him by the same 
account between the merchant and factor, principal. Cal. Cir. Code, § 3053 ; Idaho, 
and a balance is due to the factor, he may It. 3. 1887, £ 31(7. 

retain the ship and goods, or produce, for Missouri: Archer v. McMechan, 21 

such balance of the general account, as Mo. 43. 

well as for the charge*, costom*, etc., paid Hew York: Nagle », McFecters, 97 N. 

on account of the particular cargo." Y. 196, 203 ; William* b. Tilt, 36 N. Y. 

Lord Bardwicke gave his opinion that a 319. See Holbrook v. Wight, 24 Wood, 

factor has a lien for his general balance, 169, 35 Am. Dec. 607 ; Bank v. Jones, 4 

which wa* afterward* confirmed by Lord N. Y. 497 ; Ohio & Mies. R. R. r. Ejuson, 
251 



* Google 



§§ 419, 420.] LIENS OF FACTORS, ETC. 

era! lien covering the balance of account due him from his prin- 
cipal. He has a general lien, because he is an agent for a con- 
tinuous service. An agent employed to perform services upon a 
particular thing has a lien for such services upon the thing upon 
which he has bestowed his labor. It is a lien for that particular 
service, and not for any other service or for any other debt. 

Lord Kenyon in an early case said : " There is no doubt, and, 
indeed, the point has been so long settled that it ought not now 
to be brought into dispute, but that, in general, a factor has a 
lien for his general balance on the property of his principal com- 
ing into his hands." ' 

At first the factor's right by custom to a general lien appears 
to have been made the subject of proof in the cause. 3 After- 
wards the right was regarded as fully established ; 8 and in mod- 
ern practice no proof is ever required that such a general lien 
exists, as a matter of fact. Judicial notice is taken of the fac- 
tor's right to a general lien. 4 

419. One who has no authority to make Bales is not a 
factor. A warehouseman to whom goods are intrusted for the 
purpose of sale, but with authority merely to receive offers and 
to negotiate sales to be reported to the owner and concluded by 
him, is not a factor or other agent intrusted with the possession 
of merchandise for sale within the meaning of a factor's act. 6 

One who carries on the business of slaughtering hogs, and 
curing, storing, and selling the product, as well for himself as 
for others, and who makes advances to others on receiving their 
hogs and holds the product until he sells it, is a factor, and has 
a lien on the property bo received and held, for his services and 
advances. 8 

420. A merchandise broker, like any other agent, may 

37 N.T. 218; Myer r. Jacob?, 1 Daly, * Green v. Farmer, 4 Bnrr. 2211,2218; 

3!; Commercial Nat. Bank v. Eleilbron- Drinkwater v. Goodwin, 1 Cowp. 251, 

ner, IDS N. Y. 439, IS N. E. lirp. "01. 255. . 

Ohio: Jordan v. James, 5 Ohio, 83, 99 ; » Burnet I v. Brand io, M. & G. 630, 

Grief? c. Cowgnill, 2 Dig. 58 ; Matthew! 665, per Lord Denman, C. J. 

D. Menedgcr, 2 McLean, 145. • Thacber v. Moors, 134 Mass. 156. 

Oklahoma: Comp. Slats. 1890, § 3320. See, also, Stollenwerek n. Thacher, 119 

Pennsylvania: Steinman c. Wilkin*, 7 Mass, 234. 

W. & S. 466, 42 Am. Dec 154. 6 Shaw v. Ferguson, 7S Ind. 547 ; Ilanna 

1 Walker v. Birch. 6 T. B. 258, 262. u. Phelps, 7 Ind. 21, 63 Am. Dec. 410. 

z As in Krugert. Wilcox, 1 Amhlcr, 232, See East v. Ferguson, 59 Ind. 16». 
died aa Kruger v, Wilcox in 1 Burr. 494. 



3igitiz eC by GOOgle 



IN GENERAL. [§ 421. 

have a epeoifto lien, when be has Buch possession of the prop- 
erty that he can exercise the right. If the property does not 
come into his hands, or into the hands of some one who holds it 
in his interest, he can exercise no right of lien. Generally he is 
not intrusted with the possession of the property which he is 
employed to sell ; but his business is merely that of a negotiator 
between- the contracting parties, and ordinarily he has no prop- 
erty in his hands on which the right of lien can attach. He 
must generally contract in the name of his principal, while a 
factor may buy and sell in his own name. A broker ordinarily 
has no possession of the goods be is employed to sell, nor has 
he any right to obtain possession. When in any case he has pos- 
session, his lien is a specific lien upon the goods for his services 
in negotiating a Bale of the same, and not a general Hen for a 
balance of account due from his principal. 1 

Moreover, when a broker claims a right of lien for brokerage 
as against property coming into his hands, he cannot enforce it 
unless he was employed by the owner. If he knew or had rea- 
son to believe that the person by whom he was employed was 
himself merely an agent, he was bound to inquire as to his au- 
thority, and to know that he could not retain the property for a 
debt due from the agent to himself. 3 

421. A stock-broker holding stocks and bonds of a customer 
upon which he has made advances is a pledgee of the securities 
rather than the holder of a lien upon them, 8 though his interest 
is sometimes spoken of as a lien.* If stocks are placed in the 
hands of a broker for sale, and he makes advances upon them, 
he may be regarded as a factor for that purpose, and he would 
have a lieu upon them or upon their proceeds for his advances 
and commissions. There is an important distinction between 
the rights of a broker having a lien, and those of a factor who 
has a lien. In the case of a factor there is an exception to the 
rule that no sale can be made under a lien except in pursuance of 
statutory authority, or by decree of a court of equity. A factor 
may sell to reimburse himself for advances made and liabilities 
incurred on account of the consignment. It is important for a 
stock-broker that he should be regarded as a factor if his special 

> Barry v. Booinger, 46 Md. 59, 65. * Jones v. Gallagher, 3 Utah, 54, 1 Pur. 

1 Barry v. Boninger, 46 Md. 59, 65. Sep. 15. 

1 Jane* on Pledgw, }} 151-154, 712. 



* Google 



§§ 422, 423.] LIENS OF FACTOBS, etc. 

interest in his customer's stocks is to be regarded as a Hen ; and 
inasmuch as he ordinarily holds the customer's securities, which 
are generally regarded as merchandise, he may properly be con- 
sidered as a factor governed by the general law regulating fac- 
tors. 1 He has such a special interest in stocks upon which he 
has made advances, that he may properly refuse to sell the 
stocks if the customer's order to sell is expressly given for the 
purpose of reinvesting in other stocks which the broker would 
be obliged to hold as security for his advances.* The broker in 
such case is entitled to the management and control of the 
stocks. 

422. A broker or agent employed upon a commission to 
obtain a loan has a lien on the fund, and may retain out of it 
the amount of his commission. 8 He is not, however, a factor, 
and therefore is not entitled to a lien for his general balance of 
account. His lien is specific ; though having in hie hands money 
of his principal, be may, in an action for the money by his prin- 
cipal, have a right of set-off in respect of his principal's existing 
indebtedness to him. 

A real estate agent or broker has a lien for lib fees and 
advancements upon deeds which come into his possession by rea- 
son of liis employment. His lien, however, is not a general lien. 4 

423. An insurance! broker, however, 'who is intrusted 
with his principal's policies, is a factor rather than a broker, 
and, like a factor, he has a lien on such policies, and the money 
collected by him for losses under the policies, for his general 
balance. 6 It is customary to intrnst an insurance broker with 
the policies which he has effected, particularly marine policies, 
so that he may be able to adjust any losses which may occur. 
It is the broker's right (o retain the policies eo long as the prin- 
cipal is indebted to him. He has a. lien on the policies for pre- 
miums paid and for his commissions. 8 If the broker acts for his 
principal continuously, or has an open insurance account with 

1 Middle's Lhw of Stockbrokers, pp. * Richards r. Gnskill, 39 KaDl. 4SS, IS 
11 8-1 SO. Pac. Rep. 494. 

* Jones t. Gallagher, 3 Utah, 54, iFit. * Levy v. Barnard, 8 Taunt. 149; Snook 
Rep. IS. r. Davidaon, 1 Camp. 218 ; Mann e. For- 

* Vinton r. Baldwin, 99 Ind. 433. renter, 4 Camp. GO. 

Hanna r. Phelps, 7 Ind. 31, 63 Am. Dec. * Levy r. Baramd, BTannr. 149 ; Manii 
410. v. Forrester, 4 Camp, 60 ; Sharp V. Whip. 

pie, 1 Boaw. 557. 
254 



jipismb, Google 



IN GENERAL. [§§ 424, 42 

him, he has a lien upon the policies for the general balance of 
his insurance account. 1 Even if the broker has knowledge that 
the person who employs him is merely an agent for the insured, 
he is entitled to liis special lien ; and if it is not known to him 
that his employer is merely an agent, he has a lien for his gen- 
eral balance against his employer in the same way as if he had 
acted directly for the insured. 2 

An insurance broker may assert his general lien even against 
an assignee of the policy. Thus, where the owner of goods sells 
tliem after directing his broker to effect insurance upon them, 
and the broker retains the policy and collects money for a loss, 
he can hold the money for his general balance as against the 
purchaser. 

424. If one aots both, as an ineurance broker and as a 
factor for the sale of goods, his lien extends to a general bal- 
ance of both accounts; he may retain a sum received for a loss 
on a policy, not only for a balance due him upon his insurance 
account, but also for a balance due him for advances and commis- 
sions upon goods.* But if the principal has remitted the premi- 
ums, payable in respect of the insurance, so that he has no longer 
any lien as a broker upon the policy, he is not entitled to hold it 
Cor the general balance due from his principal to him as a factor. 6 

425. An agent, who is not a broker or general agent, who 
effects insurance for his principal, and pays or becomes 
bound for the premium, has a specific lien on the policy so 
long as be retains it. If he surrenders the policy to his principal, 
his lien is gone. Although the insurers are entitled to deduct the 
premium, if unpaid, from the amount payable upon a loss, yet, 
if the agent baa paid the premium to the insurers, he has no 

1 Mann r, Forrester, 4 Camp. 60, pet reason Co believe that the person by whom 

Lotd Elknborongh ; per Woodruff, J., in he was employed was only an agent ; and 

Sharp v, Whipple, 1 Bosw. 557 ; Man v. the party who seeks to deprive him of his 

Sbiffner, B East, 533 ; Mood; p. Webster, lien must make out ihe affirmative. The 

3 1'iek. 421. employer ia lo be taken to bo the principal 

1 Mannr. Forrester, 4 Camp. 60; Sharp (111 the contrary is proved." Per Gibbs, 

■- Whipple, 1 Bosw. 5S7 ; West wood v. C. J. In Snook v. Davidson, ! Camp, 

Bell, 4 Camp. 349, 353. "I hold that, if SIS; and in Lanyon v. Blanchafd, 2 

t policy of insurance is effected by a bro- Camp. 596, 597, the broker mnst be taken 

ker, in ignorance that it does not belong to have had notice thai the person who 

w ibe persons by whom he is employed, employed him was not the principal. 
be has a lien upon it for tbe amount of * Man ». Shinier, S East, 523. 
ibe balance which ibeyowahim. . . . The « Oliver. Smith, 5 Taunt. 56. 
only question i», whether he knew or had * Dixon v. Stan* field, 10 C. B. 398. 

265 



lecbyGOOgle 



§ 426.] LIEHS OF FACTORS, ETC. 

equity to stand in their place, and to claim payment oat of the 
Bum due for the loss. 1 

But such an agent who procures a policy in pursuance of a spe- 
cific order, and under directions to forward the policy to his princi- 
pal, has no lien on the policy, " By undertaking to execute the 
order," said Chief Justice Shaw, 3 " he bound himself to comply 
with the terms and forward the policy ; and this precludes the sup- 
position that he was to have any lien upon it or interest in it." 

A ship's husband, for the general management of the vessel 
insured, has no lien on a policy for the balance of his account, 
where lie has procured the insurance under specific directions to 
forward the policy to the owner. 8 

If the broker knew at the time of effecting a policy that the 
person who employed him was acting for another, he has no lien 
upon the policy for the general balance due him from such agent, 
but only a special lien for tbe premium and commissions due on 
that policy. 4 

II. To what Property tkey Attack. 

426. A factor's lien for his general balance attaches only 
to goods received by him in his general capacity as factor : 
it does not attach to goods received by him under a special 
agreement for a particular purpose. " The lien which a factor 
has on the goods of his principal arises upon an agreement which 
the law implies; but when there is an express stipulation to the 
contrary, it puts an end to the general rule of law." 6 Thus, 
where the owner of certain cotton deposited it with a broker for 
sale, under a special agreement that the latter should pay the 
proceeds to the owner, it was held that the broker had no lien 
on this cotton for the balance of his general account arising upon 
other articles ; for the express stipulation of the parties excluded 
the idea of such a lien. The goods not having been sold, tbe 
owner, or his assignee in bankruptcy, was entitled to have them 
returned. 8 

The special agreement may, however, be consistent with the 

1 Cranston v. Philadelphia lot. Co. 5 • Man v. Shiffuor, £ East, 533. 
BIdd. 538. * Walker v. Birth, 6 T. R. SSS, Ml, 

1 Seed r. Pacific In*. Co. I Met. 166. per Lord Kenyoa. 

■ Seed v. Pacific las. Co. 1 Met. 166. • Walker >. Birch, SIB. !S8, 363. 

See Hall p. Jackson, 20 Pick. 191. 
256 



3igitiz eC by GOOgle 



TO WHAT PBOPEBTY THEY ATTACH. [§ 427. 

implied lien. Wool merchants in Obio, in consideration of fur- 
ther advances bj their factor!: in New York, agreed to ship them 
wool enough to balance their account for such advances and a 
large indebtedness already existing, and any indebtedness that 
might subsequently accrue. It was held that the lien of the fac- 
tors upon the wool received was not limited to their advances on 
each shipment, but was available for the satisfaction of the gen- 
eral balance due them. 1 

If a factor receives goods in the general course of business with- 
out notice of the fact that they were consigned to him for a special 
purpose, he has a lien upon them for his general balance. 3 

427. A general lien is not implied when there is a special 
agreement which is inconsistent 'with such a lien. 3 If a trans- 
action between two houses having many dealings between them 
is shown to be an isolated dealing on a particular footing, and to 
have been intended to be brought to a point and settled by itself, 
it does not enter into the general account between the parties 
and become subject to a lien for a general balance. A firm of 
merchants in Hamburg directed their correspondents in London, 
a firm of merchants, to purchase Mexican bonds upon certain 
terms, and to hold them in safe custody at the disposal of the 
Hamburg firm. The bonds were accordingly purchased July 2, 
and the next day the London firm drew upon the Hamburg 
firm for the amount, which, they said, balanced the transac- 
tion. The bills were accepted and paid. On the 19th of Novem- 
ber the Hamburg firm requested that the bonds be sent to them 
by post; but on the same day the London firm wrote that they 
had stopped payment, but that the bonds had not been jeopard- 
ized. The Hamburg firm afterwards stopped payment. In a 
suit by the representatives of this firm for the delivery of the 
bonds, it was held that the bonds were not subject to the general 
balance of account between the two firms. 4 

Under an agreement that certain advances shall be paid out 
of the proceeds of a certain consignment, the factor is bound to 
apply the proceeds of such consignment to the payment of the 
specific advances, and cannot apply them to a debt due him not 
contracted under the agreement, and for which he had no lien. 6 

1 Chapman v. Kent, 3 Duor, 324. * Bock e. Gorrinseit, 30 L. J. Ch. 39. 

* Anli. r v. McMechnn, SI Mo. 43. ' Owen V. Iglunor, 4 Cold. 15. 

1 Bnradio e. Burnett, 3 C. B. 919, 531. 



: ec by Google 



§§ 428-430.] LIKNS OF FACTORS, ETC. 

428. A factor has no general lien on goods which he has 
received under express directions to apply the proceeds of in 
a particular way. He must first carry out the instructions of the 
consignor as to the application, and then, if there is a surplus, 
his general lien may attach to this. 1 

He has no lien on goods which are delivered to him as agent 
for the use of his principal. Such a delivery is considered as a 
delivery to the principal, and the possession is considered to be in 
the principal. 1 

No lien arises in favor of an agent with whom goods or a 
policy of insurance is deposited for safe keeping. 8 And so if be 
is intrusted with property for a particular purpose, he cannot 
retain it under a claim of a general lien. 4 An agent employed 
merely to purchase certain goods is entitled to a lien for bis 
advances in making the purchase, but he is not entitled to a lien 
for a general balance due him from his principal.* 

429. A third person, to whom a factor has intrusted his 
principal's goods for sale, has no lien on them as against the 
principal. 8 The relation of a factor to bis principal is one of 
trust, and he cannot delegate his authority to another, or substi- 
tute another in his place, without the sanction of his principal, 
express or implied. A transfer of the goods by the factor to 
another, whom he authorizes to act in his place, is a conversion 
of the goods by the factor. Tbe principal may thereupon sue the 
factor in trover for the conversion, or, waiving the tort, lie may 
Bue him in assumpsit for the value of the goods. 7 

The lien of a factor is a personal privilege, and cannot be set 
np by any other person in defence to an action by the principal. 
He may avail himself of it or not, as he pleases. 8 

430. If a factor or consignee makes a general assignment 
for the benefit of his oreditors, the assignee has no right to sell 
tbe goods, for tbe factor or consignee cannot delegate his author- 
ity to another without the consent of the principal. All that 
passes by tbe assignment is the lien on the goods. The assignee 
has lawful possession of the goods under the assignment, but this 

1 Frith v. Forba, 32 L. J. Ch. 10. • Phelps v. Sinclair, S N. II. 554. 

* G iimey u. Sharp, 4 Taunt. 242. ' Campbell v. Recvea, S Head, KM. 

» Mnir v. Fleming, I D. & R. 29. ■ Holly v. Huggaford, 8 Pick- 73, 19 

* Burn v. Brown, 2 Stark. 272. Am. Dec. 303. 

* Da Wolf v. liowland, 2 Fain*, 358, 
MB. 

268 



3igitiz eC by GOOgk 



TO WHAT PROPERTY THEY ATTACH. [§§ 431, 481 

gives him no right to assume to himself the entire property, or 
right of disposing of the goods. A sale of the goods by him ia a 
tortious conversion of them. His legal right extends no further 
than to hold the goods by virtue of the Hen, or to foreclose the 
lien in the manner provided by statute. 1 

431. Goods received after death of principal. — Although 
the death of the principal is a revocation of the agent's author- 
ity, yet the possession of goods acquired by a factor after the death 
of his principal, where he has made advances upon the goods, may 
entitle him to a lien. 3 

Bat if the factor does not obtain actual or constructive posses- 
sion of the goods till after the death of the principal, he has no 
lien for an existing debt, or general balance of account. 8 Thus 
a manufacturer wrote to commission merchants to whom he was 
indebted, and inclosed an invoice of goods which he was about 
to ship to them, but died before the letter was mailed or the 
goods had left his possession. His son the next day forwarded 
the letter and the goods, and the merchant sold the goods, and 
gave credit for the proceeds in reduction of their balance of ac- 
count against the manufacturer. In a suit against them by the 
administrator of the deceased, it was held that they must pay 
over the proceeds of theBe goods to the administrator.* 

432. A factor has no general lien on goods which the con- 
signor has informed him belong to another person to whose 
credit he is directed to place the proceeds." Dealers in livestock 
shipped to brokers in Chicago certain carloads of stock, which 
had been purchased with the money of a banker at the place of 
shipment, and the dealers so informed the broker, and directed 
him to place the proceeds of sale to the credit of the banker in' a 
certain bank in Chicago, in accordance with their custom in pre- 

1 Terry v. Bamberger, 44 Cona. BBS, sign them, and id intimation of ancb in- 

14 Blatchf. 134 ; Willard o. While, 10 N. Motion by letter, whilst they remain in the 

Y. Supp. 170, SS Hun, 581. actual possession end custody of (be con- 

1 Hammonds v. Barclay, 9 East, 937; signor, ii not sufficient to create a lien. 

Lempriero p. Paslej, 3 T. R. 4B5. In the present case, it appears that the 

1 Cook v. Brannin, 87 Ky. 101, 7 8. W. goods remained on the premiaee of the ia- 

Bep. S77. testate at the lime of hia decease, and were 

• FanUB*. Bontelle, 13 Met. 159, 185. subsequently forwarded by hie noa." Per 

" Bat before auch lien attaches, the goods Shew, C- J. 

must hare been delivered or sent to the * Weymouth e. Boyer, 1 Tea. Jr. 416, 

it least put upon their tran 433 ; Darlington v, Chamberlin, 130 111. 

nd an intention so to can- 585, 13 N. E. Bep. 78. 



* Google 



§ 438.] LIENS OF FACTOBS, ETC. 

vioua transactions. The stock really belonged to the banker, 
though the dealers had shipped it in their own names without 
consulting him, in order to get better rates of freight. The 
brokers applied the proceeds of the sale, less their commissions, 
to an old account against the dealers for advances made to them 
for which they claimed a factor's lien. It was held that their 
claim was inadmissible as against the owner of the stock. 1 

A consignee who receives shipments of goods upon which others 
have made advances, and taken transfers of bills of lading as 
security, acquires no lien upon them to the prejudice of those who 
have made the advances. 1 

A factor and consignee who has received property with know- 
ledge that a draft has been drawn against him for the proceeds 
by the consignor in favor of a third person cannot apply the pro- 
ceeds on any other account. Even if he might himself enforce a 
lien for a general balance of account, he cannot retain the proceeds 
and pay the same over to a firm to which the consignor was in- 
debted, though the consignee is a member of that firm. 9 

433. And bo if the agent has notice of the bankruptcy of 
his principal, or of his assignment for the benefit of hie cred- 
itors, before he gets possession of the property, be cannot hold it 
under a claim of a general lien. 4 But if he has received a bill of 
lading or other insignia of property in the goods before notice 
of his principal's bankruptcy, he is not divested of his right of 
lien, though he has such notice before the goods actually arrive, 
for the bill of lading confers title and constructive possession. 
The bankruptcy of the principal after the factor has received the 
goods does not divest him of lus lien." 

After a factor has obtained possession of the goods, his lien is not 
divested by an attachment of them by a creditor of his principal. 6 

•Darlington v. Chamberlin, ISO HI. If the principal before his insolvency hai 

S85, 12 N. E. Bap. 7S. transferred the gooda to the factor in dia- 

■ First Nit. Bank tr. Ege, 109 N. T. ISO, charge pre taato of the lien debt, the latter 

IS N. E. Rep. 317. is not bound lo *et off the amount of «c- 

* Fisher r. First Nat. Bank, 37 111. A pp. commodation drafls drawn by the princi- 
333. pal for the factor's benefit, which were not 

* Copland t\ Stein, 8 T, 11. 199; Bob- due when the goods were so transferred, 
ton it. Kemp, 4 Esp. S33, 336. Per Lord and liave not been paid by (be principal. 
Ellen borough, C. J. Fourth Nat. Bank v. American Mills Co. 

* Hudson u. Granger, 6 B. k Aid. 37 ; 137 U. S. 334, 11 Sup. Ct. Rep. as. 
Fourth Nat. Bank p. American Mill* Co. • Haxen v. Landrnm, 91 La. Ann. 366. 
137 U. 8. 234, 11 Snp. Ct. Rep. S3. In Indiana: Goods ■tiached in the 



3igitiz eC by GOOgk 



TO WHAT PROPERTY THET ATTACH. [jj 434. 

434. Whether a consignee has a lien upon goods which 
have been wrongfully consigned to him depends very much 
upon tbe manner in which the consignment is made. 1 A carrier 
lias no lien on such goods for freight as against the rightful 
owner, 3 and the consignee could acquire no lien as against such 
owner by paying the freight. As regards the duties upon goods 
imported by one who has come wrongfully into possession of the 
goods, the United States would have a lien, and the duties mnat 
be paid if the goods are entered, and withdrawn from the custody 
of the United States ; but this lien would not ordinarily be trans- 
ferred to the consignee under the wrongful consignment, who has 
paid the duties and received the goods, for no lien can be implied 
in favor of one who acts adversely to the rights of the owner. 3 

But the owner may be estopped by his conduct from denying 
that such consignee paid the duties for his use and at his request. 
Tims, if the owner, intending to replevy the goods, stands by and 
knowingly allows the consignee, who honestly believes the goods 
were properly consigned to him, to pay the customs duties, the 
owner cannot maintain his action of replevin without tendering 
the amount so paid. Under such circumstances the consignee 
obtains an equitable lien upon the goods by reason of such pay- 
ment. 1 

It is held, however, that, although the consignor has obtained 
the goods by means of fraudulent representations, a factor who 
has in good faith received the goods for sale, and made advances 
upon them to the consignor, acquires a valid lien, and the orig- 
inal vendor cannot obtain them from him without paying the 
advances.* 

But a factor who has obtained possession of the property on 
which he claims a lieu by means of misrepresentations, or in any 
manner which makes his possession unauthorized or tortious, is 
not entitled to a lien. 6 

hand of ■ consignee shall be subject to a ' Fooler v. Parsons, U3 Mass. 401,9 
Bct for my debt doe him from tbe con- N. E. Rep. 799, per Field, J. 
•grwr. It 3. 1881, % 937. a g 304. 

InXasui: When properly in attached * Fowler v. Parsons, 143 Mam. 401, 9 
» tie band* of ■ consignee or other per- N. E. Rep. 799. 

■on having a prior lien, hii lieu thereon ' Fowler v. Parsons, 143 Man. 401, 9 

"ball not be affected by the attachment. N. E. Rep. 799. 
Camp. Lewi 1SB5, § 4609. * Williams o. Birch, 6 Bos*. 299. 

IttarUu: tee {437. e Madden d. Kernpster, 1 Camp. 12; 

Taylor b. Robinson, S Taunt. 648. 

261 



* Google 



§§ 485-437.] liens of factors, etc. 

436. A consignee who has insured the goods on which he 
has made advances has a lien upon the insurance money 
collected by him for a loss by fire without his fault, though the 
insurance was effected for the benefit of the consignor. He had 
a lien upon the goods, and when these were destroyed the amount 
recovered by him upon their loss was substituted in their place, 
and was held subject to the same lien. 1 

436. In several States there are statutes whioh protect 
factors in their dealings with consignors. These statutes are 
generally made a part of the Factors' Acts of these States. The 
general purpose of the factors' acts is to enable third persons to 
deal with agents intrusted with goods, or with the documents of 
title to goods, for sale, as though they were the absolute owners 
of the goods. 9 The same acts also generally afford a similar 
protection to factors who make advances to consignors upon goods 
consigned. 

437. Louisiana. 8 — Every consignee or commission agent who 
has made advances on goods consigned to him, or placed in his 
hands to be sold for account of the consignor, has a privilege for 
the amount of these advances, with interest aud charges, on the 
value of the goods, if they are at his disposal in his store, or in a 
public warehouse, or if, before their arrival, he can show by a bill 
of lading or letter of advice that they have been dispatched to 
him. Such privilege is preferred to that of any attaching cred- 
itor on the goods consigned to him, for any balance due to him, 
whether specially advanced on said goods or not : provided they, 
or an invoice or bill of lading, have been received by him previous 
to the attachment. This privilege shall not have a preference 
aver a privilege preexisting in behalf of a resident creditor of this 
State- 4 

Under this statute giving a consignee a lien by way of pledge 
upon goods consigned to him for his advances upon them, if he 
has control of the goods, or if before their arrival he can show 
by a bill of lading, or letter of advice, that they have been 
dispatched to him, the consignee, after receiving such letter of 
advice, or a bill of lading, has a lien which cannot be defeated by 
the consignor's drawing a draft against the goods, obtaining a 

1 Johnson e. Campbell, 120 Man. 449. * Rev. Lswn 1S84, § 3887. Sea Bad- 

* J on™ on Pledge*., J 333. decks v. Spence, 23 La. Aon. 387 ; Mtien 

* R. Ci». Coda 1870, ait. SM7. v. Landrnm, 21 La. Aon. 356. 



3igitiz eC by GOOgle 



TO WHAT P80PMTT THEY ATTACH. [§§ 488, 439. 

discount of it, and using the proceeds for the purchase of the 
goods bo consigned. 1 

438. Maine. 3 — Every person in whose name merchandise is 
forwarded, every factor or agent intrusted with the possession of 
any bill of lading, custom-house permit, or warehouse-keeper's re- 
ceipt for the delivery of such merchandise, and every such fac- 
tor or agent not having the documentary evidence of title, who 
is intrusted with the possession of merchandise for the purpose 
of smle, or as security for advances to be made thereon, shall be 
deemed the true owner thereof, so far as to give validity to 
any lien or contract made by snch shipper or agent with any 
other person for the sale or disposal of the whole or any part of 
snch merchandise, money advanced, or negotiable instrument, or 
other obligation in writing, given by such person upon the faith 
thereof. 

No person taking such merchandise in deposit from such agent 
as security for an antecedent demand shall thereby acquire or 
enforce any right or interest therein other than such agent could 
then enforce. But the true owner of such merchandise, upon 
repayment of the money so advanced, restoration of the security 
so given, or satisfaction of all legal liens, may demand and re- 
ceive his property, or recover the balance remaining as the pro- 
dace of the legal sale thereof, after deducting all proper claims 
and expenses thereon. 

439. Maryland. 8 — Any person intrusted with and in posses- 
sion of any bills of lading, storekeeper's or inspector's certificates, 
order for the delivery of goods, or other document showing pos- 
session, shall be deemed the true owner of the goods, wares, or 
merchandise described therein, so far as to give validity to any 
contract thereafter to be made by such person with any other 
person or body corporate for the sale or disposal of the said 
goods, wares, or merchandise, or for the pledge or deposit thereof 
as a security for any money or negotiable instrument advanced 
or given on faith of such documents, or either of them : provided, 
that such person or body corporate shall not have notice, by 
such document or otherwise, that the person so intrusted is 
not the actual and bond fide owner of such goods, wares, and 
merchandise. 

1 Helm r. Merer, 30 La. Ann. 9+3. * Pub. G. L. IMS, art. 2, | 3. 

1 H. 8. 1883, cb. 31, JS 1-3- 

263 



3igitiz eC by GOOgle 



§§ 440, 441.] LIENS OP FACTORS, ETC. 

If any person or body corporate shall take any goods, wares, or 
merchandise, or any document mentioned in tbe foregoing clause, 
in deposit or pledge from any person so intrusted with the same, 
or to whom the same may be consigned, or who may be intrusted 
with and in possession of any such bill of lading, storekeeper's 
or inspector's certificate, order for the delivery of goods, or other 
such document showing possession, without notice, as a security 
for any debt or demand existing before the time of such deposit 
or pledge, then Such person shall acquire such right, title, or in- 
terest as was possessed and might have been enforced by the 
person from whom he received the same, and no more. 

440. Massachusetts. 1 — Every person in whose name mer- 
chandise is shipped for sale by a person in the lawful possession 
thereof at the time of the shipment shall be deemed to be the 
true owner thereof so far as to entitle the consignee to a lien 
thereon for money advanced, or securities given to the shipper 
for one on account of such consignment, unless the consignee, at 
or before the time when he made the advances or gave the securi- 
ties, bad notice, by the bill of lading or otherwise, that tbe shipper 
was not the actual and bond fide owner. 

When a person intrusted with merchandise, and having author- 
ity to sell or consign tbe same, ships or otherwise transmits or 
delivers it to any other person, such other person shall have a 
lien thereon for any money or merchandise advanced, or nego- 
tiable security given by him, on the faith of such consignment, 
to or for the use of the person in whose name such consignment 
or delivery was made ; and for any money, negotiable security, 
or merchandise received for the use of the consignee by the per- 
son in whose name such consignment or delivery was made, if 
such consignee had, at the time of such advance or receipt, prob- 
able cause to believe that the person in whose name the mer- 
chandise was shipped, transmitted, or delivered was the actual 
owner thereof, or bad a legal interest therein to the amount of 
said lien. 

441. New York 2 and Ohio. 8 — Every person in whose name 
any merchandise shall be shipped shall be deemed the true owner 
thereof, so far as to entitle the consignee of such merchandise 
to a lien thereon : 1. For any money advanced or negotiable 

1 P. S. 18B2, Oh. 71, §§ 1, 9. " B. S. 1892, §J 32U, 3315. 

1 4 R. S. 1SB9, 8th ed. p. 2S17, £ 1. 

264 



3igitiz eC by GOOgk 



TO WHAT PBOPEETT TBET ATTACH. [§§ 442-444. 

security given by such consignee, to or for the nse of the per- 
son in whose name such shipment shall have been made ; and, 
2. For any money or negotiable security received by the person 
in whose name such shipment shall have been made to or for 
the use of such consignee. The lien so provided for Bball not 
exist where Buch consignee shall have notice, by the bill of lading 
or otherwise, at or before the advancing of any money or secu- 
rity by him, or at or before the receiving of such money or 
security by the person in whose name the shipment shall have 
been made, that such person is not the actual and bond fide owner 
thereof. 

442. Pennsylvania. 1 — Whenever any person intrusted with 
merchandise, and having authority to sell or consign the same, 
shall ship or otherwise transmit the same to any other person, 
such other person shall have a lien thereon : 1. For any money 
advanced or negotiable security given by him on the faith of such 
consignment to or for the use of the person in whose name such 
merchandise was shipped or transmitted ; 2. For any money or 
negotiable security received for the nse of such consignee by the 
person in whose name such merchandise was shipped or trans- 
mitted. But such lien shall not exist for any of the purposes 
aforesaid, if such consignee shall have notice, by the bill of lad- 
ing or otherwise, before the time of such advance or receipt, that 
the person in whose name such merchandise was shipped or trans- 
mitted is not the actual owner thereof. 

443. Rhode Island. 2 — The consignee of merchandise shipped 
shall have a lien thereon for any money or negotiable security 
by him advanced upon the faith of such shipment to, or for the 
nse of, the person in whose name the shipment shall have 'been 
made, in the same manner, and to the same extent, as if such 
person were the true owner thereof: provided, at the time of 
the advance, the consignee shall have no notice or knowledge 
that the shipper was not the true owner of such merchandise. 

44 4. Wisconsin. 3 — Every consignee of property shall have a 
lien thereon for any money advanced or negotiable security given 
by him to or for the use of the person in whose name the ship- 
ment of such property is made, and for any money or negotiable 
security received by such person for his use, unless he shall, 

1 Brighlly'R Pardon's Dig. 1889, p. 773. * AddoI. State. 1889, |$ 3345-3347, 
* P. S. 18BH, ch. 136, i 1. 



* Google 



§§ 445, 446.] LIENS 07 FACT0B8, ETC. 

before advancing amy anch money, or giving such security, or 
before it ia go received for his use, have notice that such person 
is not the actual owner thereof. 

Every factor, broker, or other agent intrusted by the owner 
with the possession of any bill of lading, custom-house permit, 
warehouse receipt, or other evidence of the title to personal prop- 
erty, or with the possession of personal property for the purpose 
of sale, or as security for any advances made or liability by him 
incurred in reference to such property, shall have a lien upon 
suoli personal property for all audi advances, liability incurred, or 
commissions or other moneys due him for services as sucli factor, 
broker, or agent, and may retain the possession of such property 
until such advances, commissions, or moneys are paid, or such 
liability is discharged. 1 

III. What Indebtedness is Secured. 

445. A debt due from the principal to the agent is the 
foundation of the agent's lien. The debt must be certain and 
liquidated. A liability of an agent as surety for his principal 
does not entitle him to a lien, in the absence of an express con- 
tract, 2 unless this liability is connected with the agency. 

The debt must be one contracted in the agent's business. It 
is usually limited to advances, expenses, and commissions incurred 
in this business. The debt which is covered by the lien is not 
limited to the advances and charges pertaining to a particular 
consignment; but the lien covers the grand balance of account 
between the parties in their relation of principal and factor. 

If a consignee pays freight on goods which prove not to be of 
the quality ordered, he has a lien for the freight as against the 
seller. 8 

446. The lien oovers interest upon the debt as well as tbe 
debt itself, though this be payable immediately, but the factor 
is permitted or requested to defer the sole of the goods in his 
possession. 4 

1 This Bt stole applies to receipts given Price ». Wisconsin Murine * Fire lot. Co. 

by private warehouses, and not merely to 43 Wis. 267. 

banded warehouses. In this respect the s Drink w iter v. Goodwin, I Cowp. 151 ; 

statute is construed differently from the Hammonds ■>. Barclay, S East, 1ST. 

New York statute, from which that of * Coit v. Schwartz, 89 Kan*. 344. 

Wisconsin was taken ; for in the Litter * Ex parte Kensington, I Deaf. S3 ; 

State there are no bonded warehouses. Heinz v. Peine, 6 Rob. 430. 



3igitiz eC by GOOgle 



WHAT INDEBTEDNESS IS SECURED. [§§ 447, 448. 

447. The debt mast be due from the owner of the goods 
which the factor retains by virtue of his lien, 1 unless the debt be 
in the form of negotiable paper of a third person, transferred to 
the factor by the owner of the goods, or the factor is employed by 
an agent for an undisclosed principal. If a broker effects insur- 
ance in ignorance that the person who employs him is not the 
owner of the property insured, but is Acting for another, he has 
a lien for the balance of account due him from the person who 
employs him. He is supposed to have made advances on the 
credit of the policy which is allowed to remain in his hands.' If 
the broker receives notice that a third person is interested in the 
policy, his lien upon it is limited to the amount of his general bal- 
ance at that time. 8 

A merchant, after advising his factor of an intended consign- 
ment of oats, and drawing upon him in anticipation, indorsed the 
bill of lading to a third person. The latter sent the bill of lad- 
ing to the factor first mentioned, who took possession of the 
cargo and paid the freight. It was held that the factor had no 
lien on the cargo for his advances, because he held the goods, not 
as agent of the person to whom he made the advances, but as the 
agent of the person from whom he received the bill of lading. 4 

And so if an insurance broker effects a policy in the name of 
an agent employed by the master of a vessel, the agency being 
known to the broker, he cannot, upon collecting the amount of a 
loss under the policy, retain it for a debt due to him from the 
agent." The employer is to be taken as the principal until the 
contrary is proved, and knowledge of the agency is brought home 
to the insurance broker. 8 

446. A factor cannot claim a lien for debts not due to 
himself, but to his principal Thus, a faetor sold goods of his 
principal in his own name to a purchaser who did not pay for 
them at the time, but sent other goods to the factor to be sold for 
him, never having employed him as a factor before. This purchaser 
then became bankrupt, and his assignees claimed the goods sent 

1 Barry v. Longmore, 1 2 Ad. * El. * Brace v. Wait, 3 M. &. W, 18. 

•39. » Foster ». Hojrt, S Johns. Cas. 3*1. 

1 Wcrtwooil o. Bell, 4 Camp. 349 ; Mann ijeo { 433. 

». Forrester, 4 Camp. BO, per Ellen borough, « Weatwood ». Bel), 4 Camp. SSI, 1 

C. J. Holt, 132, per Gibbi, C. J.; Miami ». 

* Mann ■>. Forrester, 4 Camp. BO. See Henderson, 1 Eaat, 339. 
Lbtj f. Barnard, 8 Taunt. 14V. 

26T 



ioogle 



§ 449.] LIENS OF FACTORS, ETC. 

by him to the factor, and which remained unsold, tendering the 
charges upon them. The factor refused to deliver the goods, 
claiming a lien upon them for the price of the goods sold by him 
to the bankrupt. There whs then a balance due the factor from 
hia first principal. 1 It was held that the assignees of the bankrupt 
were entitled to recover. 

449. A factor has no lien for a debt due from his prin- 
cipal before he became his factor, unless it was contracted in 
anticipation of the relation of principal and factor. "I do not 
find," said Chamhre, Justice, 2 "any authority for saying that a 
factor has any general lien in respect of debts which arise prior 
to the time at which his character of factor commences; and if 
a right to such a lien is not established by express authority, it 
does not appear to me to fall within the general principle upon 
which the liens of factors have been allowed. It seems to me 
that the liens of factors have been allowed for the convenience of 
trade, and with a view to encourage factors to advance money 
upon goods in their possession, or which must come to tbeir hands 
as factors; but debts which are incurred prior to the existence of 
the relation of principal and factor are not contracted upon this 
principle." To give a lien for such debts would, he says, operate 
the contrary way, since it would tend to prevent insolvent per- 
sons from employing their creditors as factors, lest the goods 
intrusted to them should be retained in satisfaction of former 
debts. 

A factor's Hen for a general balance rests on the custom of 
trade, and nothing can fall within the custom of trade but what 
concerns the trade. Therefore collateral obligations, suuh as 
money due for rent, are not within the custom which authorizes a 
factor to retain for a general balance. 9 

The factor's lien does not cover the price of goods sold by 
the factor to his principal. It does not cover any debt not con- 

1 Houghton v. Matthews, 3 Bo*. & Pill. 61, per EHenboroogh, C. J. ; Olive r. 

486. Lord Alvanley, C. J., disputed. Smith, S Taunt. 56; Walker o. Birch.fi 

being of opinion that the moment the T. K. 268; Stevens v. Hobbina, 12 Mais. 

goads wero leal, the relation of principal 180, 162 ; Sturgia o. Slacum, IB Pick. 36, 

and factor arose, and when that relation 40, per Wilde, J. 

commenced, the right to a genera) lien * Huughtoo v. Matthews, 3 Boa. t I'nl. 

attached. 486, 494. per Heath, J. ; Ex part* Deese, 

a Houghton it. Matthew*, 3 Boa. & Pul. 1 Alk. 229. 
4S5, 488; Mann v. Forrester, 4 Camp. 60, 



3igitiz eC by GOOgk 



WHAT INDEBTEDNESS IS SECURED. [§§ 450, 451. 

nected with the general purposes of the relation of principal and 
agent. 1 

460. The lien covers acceptances aa well as advances in 
money. An agent or consignee to whom goods are consigned 
for sale under an agreement that he will accept bills drawn upon 
liim for the amount, has a lien on the goods for the amount of 
his acceptances, and is entitled to retain the goods until the ac- 
ceptances are paid. It is a necessary inference in such case that 
the drafts are to he drawn on the credit of the goods, and that 
the consignee is to have a lien on the goods to secure him against 
his acceptances. If the consignee had upon the request of the 
consignor advanced money upon the goods, he would clearly 
have had a lien upon the goods to secure his advances; and his 
acceptances amount in fact to advances. 3 The debt need not be 
payable immediately. The factor may retain goods to meet his 
liability upon an acceptance payable at a future time. 8 

451. Lien for duties paid. — There is a lien in favor of the 
government upon goods in its possession for the duties due 
thereon ; but the lien is restricted to the duties upon the partic- 
ular goods. 4 The consignee cannot take the goods nntil he has 
paid the duties. Neither can the creditor of the owner by any 
attachment or other process take the goods out of the possession 
of the officer of customs by attachment or other process until the 
lien for duties be actually discharged.' 

The owner's property in the goods is not divested by the pos- 
session of the United States for the purpose of maintaining the 
Hen for duties. That possession is not adverse to the title of the 
owner, and, indeed, nitty be properly deemed not so much an ex- 
clusive as a concurrent and mixed possession for the joint benefit 
of the owner and of the United States. It leaves the owner's 

1 Thnchcr tr. Honnnhs, i Rob. 407. held aa an indemnity against the drafts? 

1 Nagle B. McFeeters, 97 N.Y.198,202. There could have been no other under- 

" Here whs the principal consigning goods standing, and no other legal effect can be 

to his ugi-nts to sell, under an agreement given to the arrangement." Per Earl, 

that be *boold be permitted to draw upon J. See, alio, Eaton ». Truesduil, 52 III 

them drafts which the/ were to accept for 307. 

his accommodation, to the amount of the * Hammonds v. Barclay, 2 Rait, 327. 

good* thus consigned. What is the legal * Dennie v. Harris, 9 Pick. 364 ; Meeker 

inference from such a stale of facts? c. Wilson, 1 Gall. 419 ; Diss v. Boiichaud, 

What other inference can there he, except 10 Paige, 445 ; Gnesnard v. Louisville & 

that the drafts were drawn on the credit Nashville R. R. Co. IS Ala. 4S3, 457. 

of the goods, and the goods were to be * Harris v. Dennie, 3 Pet. 292. 
269 



y, Google 



§§ 452-454.] LIKHS OP FACTORS, Eta 

right to the immediate possession perfect the moment the lien for 
the duties is discharged. And if he tenders the duties, or the 
proper security therefor, and the collector refuses the delivery of 
the goods, it is a tortious conversion of the property, for which an 
action of trespass or trover will lie. 1 

452. Though the debt has been barred by the statute of 
limitations, a lien for such debt attaches to goods of the prin- 
cipal which afterwards come into the agent's hands, for the debt 
is not discharged by the statute, but only the remedy by action ; 
he has a subsisting demand, and therefore if goods come into his 
possession he has the remedy in his own hands, and has no oc- 
casion for an action. 3 

IV. For Advances on Cropt. 

463. By common law, one who advances money or sup- 
plies to a farmer or planter to enable him to make a crop ac- 
quires no lien upon i he crop for such advances. 8 Such a lien may, 
however, be created by express agreement, 4 and in some States 
it is given by statute. Such a lien is commonly called an agri- 
cultural lien. 

454. Alabama. 5 — Whenever advances in horses, moles, oxen, 
or necessary provisions, farming tools and implements, or money 
to purchase the same, shall be made by any person to any other 
person in this State, and such advance shall be obtained by the 
latter, to enable him to make a crop, 4 and it shall be declared in 
a written note or obligation for the same, given by the person 
to whom such advance is made, that the same was obtained by 

t Conard v. Pacific Int. Co. 6 Pet. 262; tonal property conveying cropj to be 

Conard v. Atlantic Ina. Co. 1 Pet. 386 ; grown, with other property, is valid and 

Conurd v. Nicoll, 4 Pet. 391. operative as a mortgage, and take! effect, 

1 Spears v. Hartly, 3 Esp. 81, 62, per as against subsequent purchasers, from 

Lord Eldan ; Higgins «. Scott, 2 B. & Ad. the time of its first admission to record aa 

418, 414. a mortgage. Dawson v. Biggins, 30 Ala. 

a Franklin v. Mejer, 36 Ark. 96. 49 ; Ellis ft Martin, 60 Ala. 394 ; Hamil- 

* Bell b, RadclifT, 32 Ark. 645. ton v. Unas, 77 Ala. 183. 

* Code 1876, §§ 3286-3288. Reenacted * The statutory lien extends only to the 
as to certain counties. Acta 1886-1887, crops of the current year, although the in- 
p. 164. ttrument may purport (o give a lien for 

An instrument which does not contain that year and the next ensuing year. Boa- 
words essential to constitute a statutory well p. Carlisle, 55 Ala. 554. 
lien, if in the form of a mortgage of per. 

270 



jipismb, Google 



FOR ADVANCES OH CHOPS. [§ 455. 

him bond fids 1 for the purpose of making a crop, 1 and that with- 
out such advance it would not be in the power of such person to 
procure the necessary team, provisions, and farming implements 
to make a crop, the advance so made, or the amount thereof, 
shall be a lien on such crop, and on the stock bought or furnished 
with the money so advanced ; and sach lien shall have preference 
of all other liens, except that for the rent of the land on which 
Bach crop may be made, and that for advances by the landlord to 
make the crop. 8 

The lien must be recorded in the office of the judge of pro- 
hate of the county within sixty days from the making of the 
same. 

Any person having such lien has the same rights and remedies 
to enforce it as landlords have for the collection of rents. 

465. Georgia. 1 — A lien is established in favor of merchants, 
factors, and others who furnish clothing, medicines, supplies, or 
provisions for the support of families, or medical services, tuition, 

1 The language of the statute must be Carter o. Wilson, 61 Alt. 434 ; Sennets- 

Strictly pursued, and therefore • recital ler D. Gains, 68 Ala. 956 ; Bell v. Hurst, 75 

that the " advances were made me to sua- Ala. 44. 

hie me to make a crop the present year" * This lieu is snperior to a prior mort- 
is not sufficient. Dawson v. Higgins, 90 gage of the crop given only for an ante- 
Ala. 49. cedent debt Hamilton o. Mass, 77 Ala. 

* It is essential to a valid lien for sach 233. 

advances that iheyshonld actually be made If a merchant snei out an attachment 

in goad faith, for the specified purpose. A to enforce his lieu for advances, and the 

stranger to the contract, not being bound landlord becomes surety for his tenant 

by its recitals, may show that they are on a replevin bond, he is estopped to deny 

■ntrue, and that the instrument was in the liability of the property to the attach- 

fact giren to secure an antecedent debt. ment. Brown v. Hamil, 76 Ala. 506. 

Boswell c. Carlisle, 55 Ala. 554. This lien is enforced by attachment. 

Tbe person making the advances it not. This remedy is subject to the same limit*- 

however, required to see to their proper tions and restrictions that are imposed on 

application, cor is he responsible for any the landlord (see cb. xii.), and can only 

misappli cation made without his know- be issued upon an affidavit which, upon a 

ledge or consent. Boswell b. Carlisle, 55 fair construction, discloses the eaisience 

Ala. 554. of a particular contract within the terms 

If tbe note or obligation be intentionally of the statute, and a state of facts wbich 

made to include a debt not contracted for authorizes the Issue of the writ upon that 

tbe purpose of making a crop, but for a contract. Elexuer a. Dickenon, 65 Ala. 

separate and distinct purpose, and the 1 89. 

debt so included constitutes a material * R. Code 1S83, S§ 1979, 1978. This 

portion oC the consideration, the statutory statute, which also applies to landlords 

lieu on the crop i> vitiated. Comer r. furnishing supplies, U stated fully in ch. 

Daniel, 69 Ala. 434 ; Pearson v. Evans, 61 xii. infra. 
Ala. 416; Collier >. Faulk, 69 Ala. 58; 

271 



3igitiz eC by GOOgk 



§ 456.] LIENS OK FACTORS, ETC. 

or school-books. They have the right to secure themselves, from 
the crops of the year in which such things are furnished, upon 
such terms aa may be agreed upon by the parties. The contract 
must be in writing. 1 

The lien of the landlord has priority; 3 but if the crop be de- 
livered into the possession of a factor or of his agent, he has a 
lien upon it at common law. In snch case his lien is superior to 
that of a landlord for the rent of the land upon which the cotton 
is raised, if the landlord's lien has not been foreclosed and the 
factor has no notice of it. 8 

The lien given to merchants and factors upon growing crops 
does not cover money advanced with which the planter is to pur- 
chase provisions and supplies; and a note given for money, 
which upon its face recites that the money is to be used to pur- 
chase provisions, does not create a debt which is secured by the 
Hen.* 

The affidavit to foreclose such lien must state that the deponent 
is either a factor or a merchant, and that, as such, he has furnished 
either provisions or commercial manures, or both, to the defendant ; 
and it must also state the terms upon which such supplies were 
furnished.' It must also aver a demand of payment of the debt 
and a refusal to pay, and that the lien is prosecuted within one 
year after the debt became due. 6 

466. In Louisiana 7 a privilege is given for debts incurred for 
necessary supplies furnished to any farm or plantation on the pro- 
duct of the last crop and the crop in the ground. This privilege 

1 Inasmuch as it ia one of the condt- ' Civ. Code, art. 3184 ; Wood c. Csllo- 
tiana of a valid crop lieu that it should be way, ai La. Ann. 471. 
created by a f pedal contract in writing, The constitution provide! that "no 
that fact ahould be alleged in the plain- mortgage or privilege shall affect third 
tiff'* affidavit to foreclose the lien. The persona, unless recorded in the pariah 
affidavit must state all the [acts necessary where the property to be affected is sit- 
to constitute a valid lien. Powell c. Bated." 

Weaver, 56 Ga, 288. Consequently a privilege in favor of a 

' Coda, <j 1977. merchant for supplies furnished a planter 

1 Clurk v. Dobbins, 52 Ga. 696. must be recorded ia the book of mort- 

* Sanlnbiiry it. Eaion, 47 Ga. 617. See gages and privileges in order to have ef- 
Spcer ti. Hart, 45 Ga. 113. See, also, feet against third persons. White v. Bird, 
Dart v. Hayhew, 60 Ga. 104. 23 La. Ann. 270. 

* Toole c. Jowers, 49 Ga. 299. The recording of a privilege too late 

* Callaway o. Wulla, 64 Ga. 167; An- ia equivalent to not recording it at all, 
derson b, Beard, 64 Ga. 137. so far as seising creditors are concerned. 

Lapene v. Meegel, 26 L*. Ann. 80. 

272 



jipismb, Google 



FOB ADVANCES OH CHOPS. [g 457. 

most be confined to the crop cultivated, standing, or being gath- 
ered and taken off at the time the supplies -were furnished. It 
cannot be extended to the crop subsequently planted, and sold 
with the plantation to a third party. 1 

A privilege in favor of one who furnishes supplies to a plan- 
tation springs only from the law that confers it. It cannot be 
the subject of contract. An acknowledgment that a creditor has 
a privilege on a crop cannot, therefore, be recognized as con- 
ferring a lien on it, unless it be shown that lie, the creditor, has. 
furnished the supplies to make it. 2 

It is also provided s that the appointments or salaries for the- 
overseer for the current year are a privilege on the crops of the 
year and the proceeds thereof ; debts due for necessary supplies 
furnished to any farm or plantation, not including articles fur- 
nished and which were sold to laborers ; and debts due for money 
actually advanced and used for the purchase of necessary sup- 
plies ; and the payment of necessary expenses for any farm or 
plantation, are privileges on the crops of the year and the pro- 
needs thereof. 

The privileges granted to the overseer, tbe laborers, the fur- 
nishers of supplies, and the party advancing money necessary to 
carry on any farm or plantation, shall be concurrent, and shall 
□ot be divested by any prior mortgage, whether conventional, 
legal, or judicial, or by any seizure and sale of the land while the 
crop is on it. 

All the privileges on the growing crop in favor of the class of 
persons mentioned shall be concurrent, except that in favor of 
the laborer, which shall be ranked as tbe first privilege on the 
crop. 

467. North Carolina. 4 — If any person shall make any ad- 
vances, either in money or supplies, to any person who is en- 
gaged in, or about to engage in, the cultivation of the soil, tbe 
person so making such advance shall be entitled to a lien on the 
crops which may be made during the year upon the land in the 
cultivation of which the advances so made have been expended, 
in preference to all other liens existing or otherwise, to the ex- 
tent of such advances : 6 provided an agreement in writing shall 

1 McCntenonftWilkinion, 18.1*. Ann. ■ Her. Laws 1884, f) 3873, 8874, 3875. 

483 ; Given r. Alexander, 25 La. Ann. 71. * Code 1888, vol. i. §§ 1799, 1783. 

1 Pa you b. Spiller, 33 La. Ann. 348. * Tbe advance* mnit be made in money 
vm. l ' 18 273 



3igitiz eC by GOOgle 



j 457.] LIENS OF FACTORS, ETC, 

be entered into before any such advance is made to this effect, in 
which shall be specified the amount to be advanced, or in which 
a limit shall be fixed beyond which the advance, if made from 
time to time during the year, shall not go; which agreement 
shall be recorded, in the office of the register of the county in 
which the person to whom the advances are made resides, within 
thirty days after its date. 1 • 

The lien for work on crops or farms or materials shall be pre- 

or supplies to a person about (0 engage in by personal efforts and at-great peril, sere 
, tbe cultivation of the crops, and after the nmli and cargoes from lots at sea ; bat 
agreement for such advances has been it is not a principle of the common law, 
mode, or simultaneously with the making nor can it bo recognized when in conflict 
and delivery of the agreement. The ad- with statutory regulations in reference 
ranees most be expended in the cnltiva- to liens. Weatbenbee u. Farrar, ST N. C. 
tion of the crop of that year, and the lien 106, 1 8. E. Rep. GIG. 
most be on the crop, of that year, made Pending a real action, in which defend. 
by reason of the advances. Clark o. Far- anta were finally adjudged to be tbe own 
rar, 74 N. C. 686 ; Reese ». Cole, 93 N. en of the land in question, the conn 
C ST. appointed a receiver of the rents and prof- 
One who makes advances of agricultn- its, up to which time plaintiffs were in 
ral supplies to a tenant or cropper does possession under claim of title. During 
so with notice of the rights of the land- such possession plaintiffs executed an 
lord, and takes the risk of the tenant or agricultural lien for advances. It was held 
cropper abandoning or otherwise violet- that the Menees were entitled to recover for 
ing his contract. If the cropper abandons advances made to plaintiffs np tolhe time 
his contract, this being special and entire, the receiver entered, bnt the advance* 
he cannot recover of the landlord for a made after such entry would depend apon 
partial performance, and his interest be- the circumstance* under which they were 
come* veiled in the landlord, divested of made. 

any lien which may have attached to It An agricultural Hen which describes 
for advance! while the cropper was In poa- the land on which the crop is to be grown 
session. Thigpen v. Leigh, 93 N. C. 47. as " a tract of land in Granville County 
The lien in aid of advances is iu pref- known as tho'C, H. Dement, dee'd,' or 
erence to all other liens except that of any other lands he may cultivate during 
the landlord for rente. Wooten v. Hill, the year 1898, "is sufficient; The words "or 
B8 K. C. 48, 3 S. £. Hep. 846j Branch c. any other lands he may cultivate," being 
Galloway, 105 N. C. 193, 10 8. £. Rep. mere surplusage. Perry v. Bragg, 109 N. 
91 1 ; Bpruill e. Arrington, 109 N. C. 192, C. 303, 14 S. E. Rep. 97. Tbe lien is op 
18 8. K. Rep. 779. entire only on the land particularly de- 
A mortgagee of a cotton crop bos no scribed. Gwathiney r. Eihericlge, 99 N. C. 
lien for further advances made to enable 671, 6 8. E. Rep. 411. 
the mortgagor to secure the crop, which ' The lieu is valid as between the par- 
will take precedenceof a second mortgage ties, although not registered within the 
duly recorded. The fact that tbe ad- time limited. Gay t>. Nub, 78 N. C. 100; 
varices were essential to the gathering of Reese v. Cote, 93 N. C. 67. But If the 
the crop, which might otherwise have been lien Is not registered, it is invalid as 
lost, doe* not aid the claim. The doctrine against subsequent purchasers and mort- 
contended for is a principle of maritime gagees. Lawrence r. Week*, 19T H. C. 
law, which applies in favor of thoaawho, 119, IS 8. E. Hep. 110. 

274 



3igitiz eC by GOOgk 



FOB ADVANCES OH CROPS. [§§ 458, 459. 

ferred to every other lien or incumbrance which attached upon 
the property subsequent to the time at which the work was com- 
menced or the materials were furnished. 1 

458. South Carolina. 8 — If any person or persons shall make 
any advance or advances,* either in money or supplies, to any 
person or persons wbo are employed or about to engage in the 
cultivation * of the soil, the person or persons so making such ad- 
*g>anoe or advances shall be entitled to a lien on the crops which 
may be made during the year upon the land in the cultivation of 
which the advances so made have been expended, in preference 
to all other liens, existing or otherwise, to the extent of such 
advance or advances : provided an agreement in writing shall be 
entered into before such advance is made to this effect, in which 
shall be specified the amount to be advanced, or in which a limit 
shall be fixed beyond which the advances, if made from time to 
time during tbe year, shall not go. s 

Any person who shall make advances in provisions, supplies, 
and other articles for agricultural purposes, shall have a lien in 
preference to all other liens, existing or otherwise, upon such pro- 
visions, supplies, and other articles, until the same shall be con- 
sumed in the use. 
469. Virginia, 6 — If any person other than a landlord shall 

1 A mortgagor in possession cannot cotton, and the owner ia to receive all of 
enatesuchaUenasagainattlieniorigegee. tbe crop above a certain quantity, i* sub- 
Brewer v. Chappell, 101 N.C. 351,7 S. E. atantially a leaaa for a jear, and gives 
Rep. 670. A lien for advances made to a the lessee inch an interest in the crops as 
landlord it subject to a contract previously enables him to incumber them with liena 
made by tbe landlord with a cropper who for advance*, subject to the landlord'* 
it to receive a share of the crape. Kouso lien by statute for rent to the extent of one 
t. Woolen, 101 N. C. 228, 10 8. E. Ilep. third of the crop. Whaley v. Jacotenn, 
190. 91 S. C. 51 ; Kennedy v. Reamea, 15 S. C. 

1 6. S. 1 S8S, || 2397, 2402. 648. 

1 A mule cannot be considered an " ad- * On proof of an attempt of the person 

van™ " to bo " expended " upon the land, to whom the advance! have been made to 

McCnlloagh if. Kibler, 9 S. C. 468. dispose of the crap or to defeat the lien, 

* Rkhey v. Do Pre, 20 S. C. 6 ; Ken- a warrant may be issued for a seizure 

rsady v. Rearuei, 19 S. C. S48. A mere em- and sale of tbe crop by tbe sheriff. G. S. 

ployo, wbo cultivate) the crop of another || 2398. 

for hire, either in money or a part of the An agreement for an agricultural lien 

crop, is not, in the sense of the agriculm- not -signed by the one who is to make the 

ral acts, "a. cultivator of the soil," and advances, hut by the borrower only, ia void, 

entitled to incumber ft with liena. But a Sease o. Dobeon, S* 8. C. 349, II 8. E. 

•ontnet by the owner of land, whereby Rep. 738, 13 S. E. Rep. 930. 

be gives to another the possession of land * Code 18B7, ft 3494, 3499; Act* IS93, 

*<w a jear for the purpose of planting eh. 468. 

275 



3igitiz eC by GOOgk 



§ 460.] LIEHS OF FACTORS, ETC.' 

make any advances, either in money or anpplies, to any one who 
is engaged in, or who is about to engage in, the cultivation of the 
soil, the person bo making such advances shall be entitled to a 
lien on the crops which may be made during tbe year upon the 
land in the cultivation of which the advances so made have been, 
or were intended to have been, expended, to the extent of Buch 
advances : provided, however, that an agreement in writing shall 
be entered into before any such advances are made, in whion 
shall be specified the amount to be advanced, or in which a 
limit shall be fixed beyond which the advances made from time 
to time during the year shall not go ; which agreement shall be 
recorded in the clerk's office of tbe county in which the land lies. 
Any person about to dispose of tbe crops, or in any way to 
defeat the lien, may be restrained by a decree in equity. 

V. When the Lien Attache*. 
460. On general principles a delivery of goods by the 
owner to a third person, with tbe intention of passing a special 
property to a factor as security for advances, should be sufficient 
to confer a lien from the time of such delivery, though the 
factor might not obtain the actual possession of the goods till 
long afterward. 1 The delivery of possession to an agent or 
servant of the factor is a delivery to tbe factor himself, and his 
lien attaches from the time of such delivery. 1 It is immaterial 
whether the depositary be a common carrier, a shipmaster, or 
warehouseman, or any other bailee, .provided only such bailee 
receives the goods on account of the factor who is to have a 
special property in them. It is material, however, whether tbe 
bailee's receipt of the goods for the factor be evidenced by some 
document, for the document is evidence of a change of property. 
In this respect a bill of lading or shipping receipt issued by 
a carrier is important ; for in the absence of this or other suffi- 
cient evidence of an intention on the part of the consignor to 
vest the specific property in the consignee, the consignor may 
change the destination of the goods at any time before they come 
into the actual possession of the consignee. 8 

1 Gibsouc Stereos, B How. 384; Grove ion, 5 Binn. 399; Ganseford r. DuuDbi, • 

e. BritD, 8 How. 423 ; NetmlthD. Dyeing 13 Hart. 284 ; Sumner v. Hamlet, 19 

Co. 1 Curtis, 130. Pick. 76 ; Nesmith v. Dyeing Co. 1 Carta, 

1 H'CombiB v. Davie*, 7 Eut, 5, S, per 130. 
Lord EllenboroDjtb; ClemMn v. David- * Mitchel ft, Ede, 11 Ad. * EL see ; 

276 



3igitiz eC by GOOgk 



WHEN THE LIENS ATTACH. [§§ 461, 462. 

But unless the consignment be made in pursuance of an express 
agreement, or one implied from the dealings between the parties, 
no lien attaches until the factor has accepted it "upon the terms of 
the letter of consignment. 1 

461. The delivery of goods to a common carrier consigned 
to a factor under a contract made before that time, is such a 
delivery to the factor as will cause his lien to attach for advances 
made. 3 Thus, if a planter deliver cotton to a carrier for a con- 
signee in pursuance of an agreement that he should have the sell- 
ing of the crop, and should reimburse himself from the proceeds 
of the Bales for advances made by him to the planter to enable 
him to make the crop, such delivery is a delivery to the factor, 
whose Hen immediately attaches to the cotton. 

It is essential to the acquisition of a lien by a factor that he 
should have and retain possession of the property upon which 
he claims a lien. " A man cannot have a Ken on goods unless he 
bare in some sort the possession of the goods." 3 But the posses- 
sion may be constructive as well as actual. It is only necessary 
that the goods should be so appropriated to the factor that they 
are essentially nnder his control. 4 

462. But a factor's lien cannot attach while the goods 
remain under the consignor's control. A delivery of goods to 
a carrier is undoubtedly a delivery to the factor to whom they 
are consigned, if the delivery is made with the intention of pass- 
ing a special property in the goods, and the consignor wholly 
parts with control of the goods. But the rule is otherwise when 
goods are sent by a consignor on bis own account without any 
previous arrangement, and they remain while in transit under 
the consignor's control. Thus, a manufacturer put goods into 
the hands of a carrier at Providence, to be carried to Boston and 
left at a tavern where the carrier's wagon usually stopped. The 
manufacturer then went to Boston and presented an invoice of 
the goods to his factor, stating that they were on the way, and 

Lewis b. Gnlcna ft C. U. R. R. Co. 40 Am. Dec. 607 ; Grosisnor v. Phillips, 2 

DL 281; Strahorn v. Union Slock Yards Hill, I4T; Elliotts. Cox, 48 Oh. 3B; Wade 

ft Transit Co. 43 111. 424, 92 Am. Dec. c. Hamilton, 30 Ga. 450 ; Hardeman v. De 

142. Vaughn, 49 Ga. 596. 

i Winter v, Coit, T N. T. 288, ST Am. * Ho Hon v. Bragg, 7 Taunt. 14, 15, 26, 

Dec 522. per Gibba, C. J. See, also, Hallett v. 

1 Kennith v. Dyeing Co. 1 Curtis, 130 ; BonsHeld, 18 Ves. 187, 1SS, 

Holbrook w. Wight, U Wend. 169, 35 « Nesmith i\ Dyeing Co. I Cnrtis, 130. 
277 



3igitiz eC by GOOgle 



§ 463.] LIEHS OP FACTORS, ETC 

obtained an advance on them. While the goods were on their 
way they were attached at the suit of a creditor of the manufac- 
turer. It was held that the factor had no lien. 1 Chief Justice 
Shaw, delivering the opinion, aaid: " Authorities were cited by 
the defendants to show that, when goods are consigned, a deliv- 
ery to a common carrier is in law a delivery to the consignee. 
This is no doubt so where the goods are sent in pursuance of a 
previous order by the consignee. Bat in this case, so far from 
a previous order from the consignees, they were sent by the con- 
signors for their own account, subject to their own order, and 
there would be no change of legal possession till some further act 
done or destination given to the goods by them ; and before any 
Bucb act done, the goods were attached. The new advance cre- 
ated no such lien, because no actual or constructive possession was 
obtained before the attachment." 

463. A delivery of the bill of lading, or some authorised 
appropriation of the goods, is essential. While a delivery of 
a hill of lading amounts to a transfer of the property, the making 
of a bill of lading in the name of an agent, by direction of the 
principal, does not affect a transfer to such agent without deliv- 
ery to him. A firm of merchants in Philadelphia, being indebted 
to their agent in Boston, without previous arrangement delivered 
on board a ship bound for Boston certain flour, taking bills of 
lading in three parts, by which the ship-owner agreed to deliver 
the flour to the agent. The ship-owner retained one of the bills 
of lading, and the merchants retained the others. The latter, 
finding themselves in a failing condition, and not having paid 
for the flour, delivered the bills of lading to their vendor, and 
returned to him the bill of the flour. The ship-owner refused to 
deliver possession to the vendor, who obtained possession by 
replevin. The ship-owner delivered his part of the bill of lading 
to the agent in Boston. It was held that the latter obtained no 
title to flour. There was no authorized delivery of a bill of lading 
to the consignee, and there was no possession or right of posses- 
sion conferred upon him. The consignors, not having delivered 
the bills of lading, could countermand the shipment. 3 

A factor acquires no lien until the property comes into his 

1 Baker n. Fuller, II Pick. 318, 311. ' Walter v. Eon, S Waih. 383. 
See Farnnm v. Bouielle, 13 Met. 159, 
1*5, per Shew, C. J. 

278, 



3igitiz eC by GOOgle 



WHEN THE LIENS ATTACH. [§§ 464, 465. 

actual or constructive possession. A merchant who has made 
advances on goods which he expects to buy acquires no right 
thereto, before delivery to him, as against a mortgages of the 
owner ; though the goods are all the time in possession of a third 
party. 1 Until actual delivery or consignment of the goods the lien 
is only an incipient one ; and if the debtor dies before such de- 
livery or consignment the incipient lien cannot prevail against 
the right of the other creditors to have all the debtor's property, 
including the promised consignment, divided equally among all 
the creditors interested, although the debtor's administrator, after 
his intestate's death, delivered the goods according to the original 
agreement. 1 

464. Of course, if a faotor makes advances upon a mere 
executory agreement of his principal to make a consignment, 
he acquires no lien until there is some sort of a delivery to him, 
either actual or constructive. A factor's lien at common law is 
a right to retain a thing of which the factor has the actual or 
constructive possession. It cannot apply to property which the 
owner has merely agreed to send to his factor to secure and reim- 
burse him for advances made upon it. 8 In equity, perhaps, a spe- 
cific performance of the contract might be enforced, in case this 
should be indispensable to justice. 4 But at law the factor would 
have only a right of action for the non-performance of the agree- 
ment. 

465. If the consignee has made advances upon the faith 
of a bill of lading, or shipping-receipt, a delivery to the carrier 
is a sufficient delivery to the consignee to enable him to maintain 
a lien upon the goods for bis advances. A factor can claim a lien 
on goods in his possession either actual or constructive." 

A bill of lading is now regarded as a document of title, confer- 
ring the right of possession and constructively possession itself. 
Therefore a factor, upon receiving a bill of lading, has the right 

i Froet t>. Deotoch (Tex.), 13 8. W. * Snllixan t. Tuck,l Md. Ch. 59. 

Sep. 981. * Davis v. Bradley, 28 Vt 118,65 Am. 

* Cooke. Brannin, B7 Kj, 101, 7 S. W. Dec. 826; Dowi v. Greene, IB Birb. 78 ; 

Rap. 877; Brooke c. Suton, 79 Ky. 194; Ho! brook v. Wight, 84 Wend. 169, 85 

Hoffman v. Brungs, S3 Ky. 400. Am. Dec 607 j Gnmenor ». Phillip*, f 

» Kinloch if. Craig, 3 T. R. 7S3, 7SS ; Hill, 147; Jordan ». Jam™, 5 Ohio, 89, 

Brace v. Wait, 3 M. & W.15; Kinloch v. 101. See Rico if. Austin, 17 Mass. 197; 

Creig.ST.B. 119; Firnom v. Boutelle, Veils' r. Cerre*, 36 Ho. 87S, 88 Am. Dec. 

13 Met. 199. 161. 

279 



y, Google 



§465.] LIENS OF FACTORS, ETC. 

to take possession of the goods, and his lien attaches immediately. 1 
The transaction is no longer an intended consignment, bat it has 
become an actual consignment by the transmission and delivery 
of the bill of lading. 3 

But a consignment under a bill of lading is not essential to the 
vesting of a lien in the factor. That document may itself confer 
a title : it certainly manifests the intent of the consignor to have 
the carrier hold the property and deliver it to the factor; but 
this intent may be manifested in other ways. Any other compe- 
tent evidence of such intent is admissible, and may be equally 
conclusive. 8 

Yet it has been held in some cases that a delivery to a carrier 
is not sufficient to give a lien to a consignee who has made ad- 
vances under an agreement that he should receive and sell the 
goods, and apply the proceeds towards the advances made, in 
preference to a creditor who has levied an attachment upon the 
goods before the shipping-receipts have been forwarded to the 
consignee, provided no bill of lading or Bbipping-receipt has been 
delivered to the consignee.* 

Some authorities even go to the extent of holding that the 

1 Heille r. Smith, 1 Boa. & Pol. 563. tier, and instructed them not to deliver to 

See, also, Bryans o. Nix, 4 M. & W. 775, the New York merchants, unless they ac- 

791 ; Verttte v. Jewell, 4 Camp. 81 ; Pat- cepted a draft for the balance doe on the 

ten v. Thompson, 5 M. & S. 350, 35E ; former deliveries, together with the price 

Meyerstein «. Barber, L. H. 2 C. P. 38 ; of ilm seventy tons then shipped. The 

Schmerts v. Dwyer, S3 Pa. St. 335 ; New York merchania refused to accept, 

Holmes p. Bai ley, 92 Pa. St. 57; Holmes and seized the augar and the balance in 

v. Bank, 87 Pa. St. 595. their own handa by writ of foreign altacfa- 

Tbns, merchants in Cuba contracted, raent. It was held that the factors were 

through their factors in New York, to ilu- entitled to a lien on the balance, and on 

liver to merchants in New York a certain the sevetttj tons for the advances made to 

quantity of sugar. There waa an arrange- the consignors. Harrison v. Mora (Pa. 

mont of long standing, by which the fac- St.), 24 All. Rep. 705. 

tors made advances to the Cuban mer- * Desha v. Pope, 6 Ala. 690, 41 Am. 

chants on an agreement by the latter to Dec. 76. 

consign sugar to them on which they were * Nesmith o Dyeing Co. I Curtis, 130, 

to hare a lien for their advances, and, when 139, per Curtis, 3. ; Bryans v. Nix, 4 H. 

the sugar was sold, credit the consignors & W. 775, 791, per Parke, B. 

with the proceeds. Deliveries were made ' Elliot v. Bradley, S3 Vt. 217 [ Bank 

through the factors on the contract with of Rochester v. Jones, 4 N. Y. 497 ; Desha 

the New York merchants, when a dispnte r. Pope, 6 Ala. 690; Hodges r. Kimball, 

arose as to the quantity necessary to com- 49 Iowa, 577. 

plete the contract. The Cuban merchants See Davis v. Bradley, 28 Vt. US, in 

shipped seventy tons of sugar to their fac- connection with Elliot v. Bradley, 33 Vt. 

tors, with bill of lading lo the latter s or- 217. 
280 



3igitiz eC by GOOgle 



WAIVER AND LOBS OF THE LIENS. [§§ 466, 467. 

factor must have actual possession before he can have a lien. 
Although the factor has a bill of lading of a consignment to him, 
and has made advances upon it and paid the freight, he has no 
lien without possession of the goods. The lien does not attach to 
goods in transit to the factor, or to goods of which the factor has 
only the right of possession. 1 

VI. Waiver and Lost of the Liens. 

466. The lien of a factor is lost by parting with the pos- 
session of the goods on which the lien is claimed, so that neither 
the goods nor their proceeds are within his control. 2 If he reships 
them to bis principal, he cannot afterwards stop them in transitu? 
If in an; way he allows his principal to hare control of the goods, 
he waives his lien. But if he sells the goods to a third person, 
who is accountable to him for the price, his Hen upon the goods 
is transferred to a lien on the price. 4 " Where a factor is in 
advance for goods by actual payment, or where he sells under a 
del credere commission, whereby he becomes responsible for the 
price, there is as little doubt that be lias a lien on the price, 
though he has parted with the possession of the goods. If he 
acts under a del credere commission, he is to be considered, as 
between himself and the vendee, as the sole owner of the goods. 
There is no doubt of the authority of a factor to sell upon credit, 
though not particularly authorized by the terms of his commission 
so to do: but if he sell without a del credere commission, it is 
veil established that he does not become a surety ; the debt is 
due to the owner of the goods only-" 6 

467. A broker 'who has not had possession of the mer- 
chandise sold by him oannot maintain a lien against the 
proceeds of the sales, if these come into his hands after the 
principal has assigned such proceeds with notice to the broker of 
the assignment. An iron-master employed brokers to sell iron 

1 Oliver ». Moon, 13 Reisk. 482 ; Wood- ■ Sweet v. Pjm, 1 East, 4 ; Kroger i>. 

nff d. N. & C. R. B. Co. 2 Head. 87. Wilcox, 1 Ambler, 252. 

1 Kroger v. Wilcox, 1 Ambler, 292 ; * Houghton t>. Matthews, 3 Boj. & Pnl. 

Godia n. London Asaurancu Co.) Ban. 485,494, Commercial Nat. Bank v. Heil- 

489, 494; Lictbairow v. Mason, 6 East, bronner, 108 N. Y. 439, 15 N. E. Rep. 701, 

Si, 2T n., per Bnller, J. ; Sharp v. Whip- reversing 20 J. &. S. 388. 

pie, 1 Bo*w. 557 ; Bligh v. Davies, 28 ' Houghton n. Matthews, 3 Bun. & Pal. 

Dear. 5n ; Matthews v. Menedger, 2 Mo- 485, 489, per Chambre, J. 
leu, 145. 

281 



3igitiz eC by GOOgk 



§§ 468, 469.] liens or factors, etc. 

and collect the proceeds for a stipulated commission. A large 
contract of a sale was made and several shipments made under it, 
the brokers making the collections. Upon a further shipment 
the iron-master assigned the bill for it with notice to the brokers, 
who collected the amount of the bill and claimed the right to 
deduct this from their commissions for the entire contract, both 
for the iron delivered and that which had not been delivered. It 
was held that they had no Hen. 1 The court said : " They were 
simply brokers for the sale of the iron, and agents for the col- 
lection of the proceeds of the sale. They were not factors or 
commission merchants to whom the iron was consigned for sale. 
They had no possession of it, or right of possession of it, and 
therefore bad no lien on it or its proceeds for their commissions. 
Their claim was a mere personal claim for the services rendered 
and to be rendered by them as brokers and agents for collection. 
They therefore could not retain this money as against the as- 
signee, whose claim it had become before the money came into 
their hands." 

468. The agent, however, may allow his principal to have 
temporary possession of the goods under an agreement re- 
serving the right of lien, and still retain his lien. The posses- 
sion of the principal is in such case regarded as the possession of 
the agent. 2 

Possession obtained by the principal by means of fraud or 
misrepresentation, 8 or by compulsion, does not destroy the factor's 
lien.* 

If a factor at the request of his principal reships goods upon 
which he has made advances to the place from which they were 
consigned, he has the right to retain them in the hands of his 
agent at that place, until his advances are paid; and the prin- 
cipal cannot obtain the possession oE them until he has paid or 
tendered the amount of such advances. 6 

469. Revival of the lien. — An insurance broker who has a 
lien, whether special or general, upon policies taken out for his 
principal, waives it by delivering them to his principal or his 
agent. 8 But if the policies are returned to the broker after a 

1 Slioener v. Cabeeo, IS Phils. 65, af- 'Ex porta Good, 3 Dear. Bky. B, 38). 

fflrmed by the Supreme Court. * Grieff ». Cowguill, 9 Die. 58. 

1 Reeves p. Capper, 6 Scott, 877, B8*. • Lery e. Barnard, 8 Taunt. 149 ; 

* Wallace c. Woodgate, 1 Car. & P. Sharp c. Whipple, 1 Bosw. SSZ ; CrautOB 

S7S. t>. Philadelphia In*. Co. S Binn. 598. 



3igitiz eC by GOOgle 



WAITER AND LOSS OF THE LIENS. [§§ 470-471. 

loss has occurred, to enable him to collect the insurance, his lien 
will revive. Such revival is not in strictness a revival of a pre- 
existing lien ; but when the policies come back into the broker's 
possession a lien attaches, as it would upon new policies coming 
into his hands. But his lien for a general balance will not attach 
again if, at the time the policies come again into his hands, cir- 
cumstances have occurred which would prevent the attaching of 
a general lien if they then for the first time came into his hands. 
If, for instance, the policies are not, at the time of their return 
to the broker, the property of the principal for whom the broker 
took them out, he can have no lien upon them. 1 

470. Disclosure of his principal does not defeat the Can- 
tor's lien. A factor having a Hen on goods does not preclude 
himself from insisting on his lien, by holding ont his principal as 
the owner of the goods. 1 

Upon a sale by a factor to a purchaser to whom the principal 
is disclosed, the purchaser cannot offset a debt due to him from 
the principal so as to defeat the factor's Hen. 3 

If a purchaser from a factor, having knowledge of the factor's 
lien, pays over the purchase-money to the principal, he renders 
himself liable to the factor for the amount of his lien. 4 It is 
said that in order to charge the purchaser, the factor should, in 
addition to giving notice of his lien, offer to indemnify him from 
the consequences of an adverse suit by the principal ; 6 but this 
is regarded by Judge Story as a questionable point. ° 

470 a. A factor waives his lien by disobeying his principal's 
instraottons to sell the merchandise he has bought for his princi- 
pal ; and if his principal has deposited money with him as mar- 
gins, the principal may recover the money under the common 
courts in an action of assumpsit 7 

471. The lien oeasea to exist upon the payment of the 
debt doe him from his principal. 8 But a factor does not lose 
his lien by drawing a draft on his principal for the amount of 
his advances and charges, especially if the draft has not been 

1 Levy v. Barnard, 6 Taunt. 149 ; * Lord Mansfield in Drinkwator v. 

Sharp v. Whipple, 1 Bww. 597 ; Spring Goodwin, I Con p. 251. 

o. S. C. Int. Co. 8 Wheat. 368. ' Story, Agency, % 409. 

a Seymour v. Hoadley, 9 Conn. 418. ' Jones v. Mark*, 40 III. 313 ; Larminia 

' Alkjns v. Amber, 3 Esp. Cm. 493. v. Carlej, 1 14 III. 196, 39 N. E. Bap. 381. 

* Drink water r. Goodwin, 1 Cowp. ■ Woodruff v. N. tC. B. B. Co.S Head, 

191. 87 ; Ship Packet, 3 Maion, 334. 



* Google 



§§ 472-474.] liens or factors, etc. 

paid, and tbe principal bas become insolvent before tbe draft baa 
become due." 

VII. Enforcement of the Ideas. 

472. As regards tbe enforcement of his lien, a factor has 
an advantage over other persons having liens at common 
law or by custom ; for he is intrusted with the goods for tbe 
purpose of selling tbem, and ordinarily it is hiB right to sell them 
and apply the proceeds to the payment of his principal's indebt- 
edness to him. He bas a lien, therefore, not only upon the goods 
while he holds them, but when be has sold tbem bis lien attaches 
to the proceeds. 3 

Moreover, by virtue of the Factors* Acts and recent statutes 
giving bills of lading a negotiable character, a factor may take 
advantage of bis lien by pledging tbe goods received for sale, for 
these statutes enable third persons to deal with a factor for sale 
as though he were the absolute owner of the goods. 

473. The case of a factor employed to purchase goods is 
different from that of one employed to sell them ; for while the 
latter has by the very nature of his employment the implied con- 
sent of his principal to sell the property and satisfy his lien from 
the proceeds, the former has no such implied consent ; and there- 
fore, while tbe factor for purchase has a lien on the goods pur- 
chased for advances made on the purchase, the additional right 
of selling the goods in order to reimburse himself for his advances 
is not conferred upon him. 3 

Moreover, a factor for purchase has no advantages under the 
Factore* Acts.* 

474. A factor has a special property in the goods intrusted 
to him for sale. He lias the right to manage the property and 
to sell it at his discretion, unless expressly restricted by instruc- 
tions from his principal. He is not, however, the owner of the 
goods, and unless he sells them in tbe usual course of his busi- 
ness, or forecloses his lien as authorized by statute in some States, 
he lias no right except to detain the goods until his demands 
against his principal are satisfied. He bas no general property 

1 De Wolf t. Howland, 2 Paine, 35G, 3), per Baylay, 3. ; Jonea on Pledges, 
361. §§ 333-393. 

* Hudson v. Granger, 5 B. A Aid. 37, 3 Lienard v. Drenlmr, 3 Fast. Fin. 213. 
* Jones on Pledge], §§ 344, 345. 
284 



3igitiz eC by GOOgle 



ENFORCEMENT OF THE LIENS. [§ 475. 

in the goods. " No doubt a factor who has made advances upon 
goods consigned to him may be regarded, in a limited sense and 
to the extent of his advances, as an owner. Yet, in reality, he has 
but a lien, with a right of possession of the goods for its security. 
He may protect that possession by suit against a trespasser upon 
it, and he may Bell the property to reimburse advances, remain- 
ing, however, accountable to bis consignor for any surplus. But, 
after all, be is not the real owner. He is only an agent of the 
owner for certain purposes. The owner may, at any time before 
his factor has sold the goods, reclaim the possession upon paying 
the advances made with interest and expenses. He has not lost 
his ownership by committing the custody of the goods to a factor 
and by receiving advances upon them. He is still entitled to the 
proceeds of any sale which may be made, even by his agent, the 
factor, subject to a charge of the advances and expenses. A fac- 
tor, therefore, notwithstanding be may have made advances upon 
the property consigned to him, has but a limited right. That 
right is sometimes, called a special property, but it is never re- 
garded as a general ownership. At most it is no more than own- 
ership of a lien or charge upon the property." 1 

475. A factor who has made advances, or incurred lia- 
bilities, on a consignment, has a right to sell so much of the 
consignment as may be necessary to reimburse sucb advances, 
unless there is some agreement between him and tbe consignor 
which varies the right. 3 " Thus, for example, if, contempora- 
neous with tbe consignment and advances or liabilities, there are 
orders given by the consignor, which are assented to by the fac- 
tor, that the goods shall not be sold until a fixed time, in such a 
case the consignment is presumed to be received by the factor 
subject to such orders ; and he is not at liberty to sell the goods 
to reimburse his advances or liabilities until after that time has 
elapsed. The same rule will apply to orders not to sell below a 
fixed price ; unless, indeed, the consignor shall, after due notice 
and request, refuse to provide any other means to reimburse the 
factor. And in no case will the factor be at liberty to sell the 
consignment contrary to the orders of the consignor, although 'lie 
has made advances or incurred liabilities thereon, if the con- 

1 United States b. VflUlongi, 23 Wall, der v. Phillips, 16 Pet. 131 ; Beadles o. 
33, 41, per Strong, J. Hnrtmus, 7 Box. 476 ; Moonej v. Hosier, 

* Brown ■>. H'Oran, M Pet. 479 ; Bian- 43 lad, 113. ' 

285 



* Google 



§ 476.] LIIN8 OF FACTOBS, KTC. 

sigoor stands ready and offers to reimburse and discharge such 
advances and liabilities. On the other hand, where the consign- 
ment is made generally, without any specific orders as to the 
time or mode of sale, and the factor makes advances or incurs 
nubilities on the footing of such consignment, there the legal pre- 
sumption is, that the factor is intended to be clothed with the 
ordinary rights of factors to sell, in the exercise of a sound dis- 
cretion, at such time and in such mode as the usage of trade and 
his general duty require; and to reimburse himself for bis ad- 
vances and liabilities out of the proceeds of the sale ; and the con- 
signor has no right, by any subsequent orders given after advances 
have been made or liabilities incurred by the factor, to suspend 
or control this right of sale, except so far as respects the surplus 
of the consignment not necessary for the reimbursement of such 
advances or liabilities. Of course, this right of the factor to sell 
to reimburse himself for his advances and liabilities applies with 
stronger force to coses where the consignor is insolvent, and 
where, therefore, the consignment constitutes the only fund for 
indemnity." 1 

476. A faotor may sell the goods at a fair market price 
and reimburse himself for advances, after a reasonable notice 
to his principal, although the latter has limited him to a higher 
price, or given express instructions not to sell. 3 

The English rule is otherwise ; the factor there having no right 

1 Brown v. M'Gran, 14 Pet. 479, 498, pleasure for an unlimited time, if he were 

per Story, J. disposed so to do. To sanction each a 

* Bran de r r. Phillips, 16 Pet. 131 ; Landii right would operate injuriously on the 

ij. Guoch, 1 DiH. 176 ; Watson v. Beatty interests of consignee!!, and would check 

(Pa. St.), 13 Ail. Rep. S21 ; HtJlowell t>. the continuance of those large advances 

Fawcett,30lowa,4Sl;P*rkeri>.Braiicker, by the aid of which a flourishing trade 

32 l'ick. 40, 46, per Wilde, J. " Bnt ai- liaj been carried on, for yean put, to the 

tcr auch a reasonable time had elapsed, gnat profit of the mercantile community, 

and a demand had been made upon the For although each advances inly some- 

princEpal to repay the money advanced times lead to over-trading, and may 1b- 

aod he had refuted to to do, be had no duoe individuate to venture upon rath 

further power, by any principle of law or speculations, yet it cannot be doubled 

justice, to control the factor's right of tale that on the whole they have contributed 

to bis prejudice, Bncb a power would be to the increase of the wealth and prosper- 

inconsistent with the understanding of the it; of the country. The principle, ihere- 

parlies aa it must be presumed to hare fore, involved in this case is of great im- 

been when the advances wen made ; and portancs, and has been considered by the 

it would enable the principal to impair court with great cans." 
the factor's security at his own will and 



3igitiz eC by GOOgle 



ENFORCEMENT OF THE LIENS. [§ 477. 

to sell ngainst his principal's consent in order to satisfy his ad- 
vances, after giving notice of bis intention to do so. 1 

If & consignor, after advances have been made, instructs his 
factor not to sell for less than a certain prioe, and the factor re- 
plies that it is doubtful whether the goods could be sold at the 
price fixed, and that he would await further instructions, and 
that ho would return the goods and remit an account if desired, 
after the lapse of a reasonable time without receiving any re- 
sponse from the consignor, the factor may sell the goods for the 
best price he can get in the market. 3 

477. In two or three States the right of the factor to reim- 
burse himself by sales is declared by statute. Thus, in Cali- 
fornia, 3 a factor has a general lien, dependent on possession, for all 
that is due to him as such, upon all articles of commercial value 
that are intrusted to him by the same principal. A factor must 
obey the instructions of his principal to the same extent as any 
other employee, notwithstanding any advances he may have made 
to his prinoipal upon the property consigned to him, except that, 

1 Smart v. San dan, S C. B. S9S, 914. an internal ; and, hating thus an author- 
Chief Justice Wilde, delivering the opin- itj and an interest, the authority becomes 
ion of the court, said: "The substantial thereby irrevocable. The doctrine here 
question in this case is, whether a factor implied, ihat whenever there ii in the 
who has nude sdvances on account of hit tame power an authority and an interest, 
principal has a right to aell the gooda in the authority is irrevocable, it not to be 
hie hands, contrary to the order* of hit admitted without qualiflcation. In lha 
principal, on the principal's making de- case of Raleigh o. Atkinson, 6 M. & W. 
fault in repaying those advances. It is 676, goods bad been consigned to a factor 
now settled law that a factor baa a lien for tale, with a limit sa to price. The fac- 
tor his advances. lint the defendant claims tor had alien on the goods (or advances ; 
mors than a lien : he claim* a right, if the and the principal, in consideration of tho;e 
principal, when called on to repay the ad- advances, agreed with the factor that he 
varices, makes a default in doing so, to sell should tell the gooda at the best market 
the gooda at such prices and timet as, prices, and realise thereon against hia ad- 
in the exercise of a sound discretion, he ranees : the court held tbat this authority 
thinks best for his principal. No case in was revocable, on the ground that there 
an English court can be produced in sup- was no consideration for the agreement, 
port of this doctrine; jet it is a right Now in tbat caae there was an authority 
which one would expect to find enforced given, and one which the principal was 
every day, if it existed. The tilence of fully at liberty to give ; the party to whom 
our law-books is a strong argument against it was given had an interest in it, yet the 
the existence of sm-h a right. . . . But, authority was held to be revocable." 
it is said, a factor for sale has an authority * Mooney d. Hosier, «5 Ind. 113. 
at such (in the absence of all a pedal or- ■ Codes ft Stat*. 1 861, 5§ 3037 and 3053 
■en) to sell; and when be afterwards of Civ. Code; a Dakota Codes, 1888, 
comes under advances, be thereby acquire* | 1807 of Civ. Code. 



;y Google 



§ 478.] LIENS OP FACTORS, ETC. 

if the principal forbids him to sell at the market price, be may 
nevertheless sell for his reimbursement, after giving to his prin- 
cipal reasonable notice of his intention to do so, and of the time 
and place of sale, and proceeding in all respects as a pledgee. 

In Georgia, 1 a factor's lien extends to all balances on general 
account, and attaches to the proceeds of the sale of goods con- 
signed, as well as to the goods themselves. Peculiar confidence 
being reposed in the factor, he may, in the absence of instruc- 
tions, exercise his discretion according to the general usages of 
the trade. In return, greater and more skilful diligence is re- 
quired of him, and the most active good faith. 

478. The factor's lien attaches to the proceeds of all sales 
made by him, whether these be in money or securities, so long 
as he retains them in his possession. The factor sells the goods, 
and thereby parts with the lien on the goods ; bnt at the same 
moment he takes the proceeds, whether the money or security, 
which he may take in his own name, and thus, as between him 
and bis principal, the lien is immediately transferred to the pro- 
ceeds. 3 

But the fact that the factor has a lien on the proceeds of a sale 
of goods on which he had a lien docs not authorize him to sell 
them or pledge them in payment or for the security of his own 
debt, or in an unusual and irregular manner; 8 unless the princi- 
pal's indebtedness to him equals or exceeds the value of the goods, 
so that the factor is substantially the owner.* But while a factor 
or commission merchant has no authority to pledge the goods 
consigned to him, if he has advanced money upon the goods, he 
thereby acquires a lien upon and special property in them to the 
amount of such advances, and he may pledge such special interest 
in them for his own use. 5 lie has no authority to dispose of the 
goods consigned to him oat of the ordinary course of business, 
nor can he dispose of them in violation of the order of his princi- 
pal, even to repay advances, at least until he hita called upon his 
principal for reimbursement. He cannot sell a debt existing in 
open account and not yet due, arising from a sale of the goods, so 

1 Cods 1883, J 2111. ley it. Packard, 20 Johns. 421 ; Graham ». 

a Btandor ti. Ptiillipa, 16 PeL 121 ; Coin- Dyater, 6 Manle ft S. I. 
mercia.1 Nat. Bank v. Hcilbronner, 106 N. * Eaton ». Bell, 3 B. ft Aid. 34. 
T. 439, 15 N. E. Hep. 701. * Merchant*' Nat. Bank v. Pope, 19 

> Bennj p. Rhodes, 18 Mo. 147 J Back. Oreg. 35, 26 Put Rep. 632. 



3igitiz eC by GOOgk 



ENFORCEMENT OF THE LIENS. [§§ 479-482. 

as to transfer a good title to the claim, when the principal ia not 
in default and has not been called upon to repay the advances. 1 

479. A factor who sells his principal's property, on which 
he has a lien for his services and advances, may retain the 
amount of his lien out of the proceeds, whether the sale was 
authorized or not. Thus, if the factor Bell the goods after the 
death of his principal, without waiting for the appointment and 
consent of an administrator, in an action against him for the 
value of the goods, the measure of damages is the value of the 
property, less the amount of his lien ; and if no question is made 
in regard to the price obtained, the damages would be such price 
less the amount of his lien. 3 Though the sale be a conversion, 
he may insist upon his lien in defence to an action for the con- 
version. 

480. Bill of sale from principal to agent. — An agent nnder 
a del credere commission has a lien for his advances and com- 
missions, and a bill of Bale to him by his principal of the goods 
in his possession is in effect a foreclosure of his lien upon them. 
Even if his principal be insolvent at the time, the bill of sale, 
though perhaps technically illegal, will be sustained as a fore- 
closure of the lien. In such a case, when the agent has used 
large acceptances of his principal for his own benefit, he is not 
obliged, for the benefit of creditors of his principal, to set off 
these against his principal's indebtedness to him, and release the 
security of bis lien to that extent. It was not unlawful for him 
to retain, with his principal's consent, bis lien for the entire 
indebtedness. 3 

481. A factor may maintain an action for the debt, al- 
though he has a lien on the goods in his possession for the debt ; 
and in an action by trustee process, or process of garnishment, by 
a third person against the factor, the principal may be charged 
as trustee or garnishee, and judgment entered against the prin- 
cipal.* 

482. A carrier who has been compelled to pay the con- 
signee's lien may himself enforce it. Thus, when a consignee 

1 Commercial Nat. Bank a. Heilbronner, * Fourth Nat. Bank p. American Milla 

108 N. Y. 439, IS N. E, Rep. 701 ; Hilton Co. 29 Fed. Rep. 611, 30 Fed. Rep. 430. 

v. Vanderbilt, 83 N. Y. 591 ; Harfield v. * Mobile & Ohio R. R. Co. v. Whitney, 

Ooodbne, 8 N. Y. 63. 39 Alt, 468. 

* Shaw v. Ferguson, 78 Ind. SIT, 59 
An. Dec 393. 



* Google 



§ 482.] LIENS 0F FACTORS, ETC. 

has a lien for advances upon goods on board ship, which are taken 
from the ship by an attaching officer on a writ against the con- 
signor, without tendering to the carrier or the consignee the 
amount of the consignee's lien, the carrier, after having been com- 
pelled to pay the amount to the consignee, may maintain an ac- 
tion therefor against the officer. The carrier is bound to the con- 
signee for the safe delivery of the goods. The property having 
been taken from the carrier's possession upon legal process against 
the consignor, the carrier, being thus prevented from delivering it 
to the consignee according to his contract, has the consignee's 
rights and remedies to enable him to answer over to the consignee 
for the value of his interests. Certainly, if he pays such consignee 
for his interest with or withont suit, he succeeds to all his rights 
of recapture or rights of action. 1 

> VenniTjeu. Express Co. 21 Wall. 186; Holmes ».B«lcom (Me.), 24 All. Hep. 881. 



3igitiz eC by GOOgle 



CHAPTER X. 

LIEN OF A FINDER OF LOST GOODS. 

483. The finder of a chattel has at common law no lien 
upon it for the labor and expanses he may have been at in 
seouring it, and in taking care of it for the owner. A quantity 
of timber belonging to one Nicholson was accidentally loosened 
from a dock in which it was placed on the bank of the Thames, 
and was carried a considerable distance by the tide and left at low 
water upon a towing-path. Chapman, finding it there, placed it 
in a safe place beyond the reach of the tide at high water. The 
owner then demanded the timber of Chapman, who refused to 
deliver it up, unless a certain sum should be paid to him for his 
trouble in securing and taking care of the timber. In an action 
of trover by the owner against Chapman, the court held that be 
had no lien on the timber.' Lord Chief Justice Eyre, delivering 
the opinion, said : " This is a case of mere finding and taking 
care of the thing found for the owner. This is a good office and 
meritorious, at least in the moral sense of the word, and certainly 
entitles the party to some reasonable recompense from the bounty, 
if not from the justice, of the owner ; and of which, if it were re- 
fused, a court of justice would go as far as it could go toward en- 
forcing the payment. . . . So it would be if a horse had strayed, 
and was taken up by some good-natured man, and taken care of 
by him till, at some trouble and perhaps at some expense, he had 
found out the owner. So it would be in every case of finding that 
can be stated, — the claim to recompense differing in degree, but 
not in principle ; which, therefore, reduces the merits of this case 
to this short question, whether every man who finds the property 
of another, which happens to have been lost or mislaid, and vol- 
untarily puts himself to some trouble and expense to preserve the 
thing and to find out the owner, has a lien npon it for the casual, 
fluctuating, and uncertain amount of the recompense which he 
> NkhoUon v. Cb»pman, 2 H. Black. 1M, 258. 

291 



* Google 



§ 484.] LIEN OF A FIHDEB OF LOST GOODS. 

may reasonably deserve. It is enough to say that there is no in- 
stance of such a lien having been claimed and allowed ; the case 
of the pointer dog 1 was a case in which it was claimed and dis- 
allowed, and it was thought too clear a case to bear an argument. 
Principles of public policy and commercial necessity support the 
lien in the case of salvage. Not only public policy and commer- 
cial necessity do not require that it should be established in this 
-case, but very great inconvenience may be apprehended from it if 
it were to be established. ... I mentioned, in the course of the 
cause, another great inconvenience, namely, the situation in which 
an owner seeking to recover his property in an action of trover 
will be placed, if he is at his peril to make a tender of a sufficient 
recompense before he brings his action : such an owner must al- 
ways pay too mnch, because be has no means of knowing exactly 
how much be ought to pay, and because he must tender enough. 
I know there are cases in which the owner of property most sub- 
mit to this inconvenience, but the number of them ought not to 
be increased. Perhaps it is better for the public that these volun- 
tary acts of benevolence from one man to another, which are char- 
ities and moral duties, but not legal duties, should depend alto- 
gether for their reward upon the moral duty of gratitude. But 
at any rate it is fitting that he who claims the reward in such 
•case should take upon himself the burden of proving the nature 
of the service which he has performed, and the quantum of the rec- 
ompense which be demands, instead of throwing it upon the owner 
to estimate it for him at the hazard of being nonsuited in an 
action of trover." 

484. A riparian owner has no lien on property oast adrift 
■on his land. 9 If a bridge be swept away by a flood, and parts 
of it lodge upon the land of a riparian owner, who removes them 
at his own expense after the owner of the bridge had refused 
to do so, the land-owner is liable in trover for a conversion of the 
fragments of the bridge. 8 A riparian owner cannot even claim 
a lien for preserving a raft east upon his land. 1 The claim in 
these cases is very unlike that of salvage of goods at sea. The 
distinction between salvage, properly so called, and the taking 
care of goods found upon the banks of rivers, is fully pointed 

* Bioitcad v. Bock, S W. Bl. 1 1 17. * Foster v. Juniata Bridge Co. 16 P*. 

* Nicholson b. Chapman, 3 H. BL 85* ; St. 393. 

Baker v. Hoag, 3 Bub. SOS, 7 Barb. 113. * EUer r. Edwardi, 4 WatU, 63, 65. 



3igitiz eC by GOOgle 



LIEN OF A FINDER OF LOST GOODS. [§ 485. 

out by Chief Justice Eyre, in the leading case already noticed : l 
" The only difficulty that remained with any of us, after we had 
heard this case argued, was upon the question whether this 
transaction could be assimilated to salvage. The taking care of 
goods left by the tide upon the banks of a navigable river, com- 
municating with the sea, may in a vulgar sense be said to be 
salvage ; but it has none of the qualities of salvage, in respect 
of which the laws of all civilized nations, the laws of Oleron, 
and our own laws in particular, have provided that a recom- 
pense should be a lien upon the goods which have been saved. 
Goods carried by sea are necessarily and unavoidably exposed 
to the perils which storms, tempests, and accidents far beyond 
the reach of human foresight to prevent, are hourly creating, and 
against which it too often happens that the greatest diligence 
and the most strenuous exertions of the mariner cannot protect 
them. When goods are thus in imminent danger of being lost, it 
is most frequently at the hazard of the lives of those who save 
them that they are saved. Principles of public policy dictate 
to civilized and commercial countries, not only the propriety, but 
even the absolute necessity, of establishing a liberal recompense 
for the encouragement of those who engage in so dangerous a 
service. Such are the grounds upon which salvage stands. . . . 
But see how very unlike this salvage is to the case now under 
consideration. In a navigable river, within the flux and reflux 
of the tide, but at a great distance from the sea, pieces of timber 
lie moored together off convenient places ; carelessness, a Blight 
accident, perhaps a mischievous boy, casts off the mooring-rope, 
and the timber floats from the place where it was deposited, till 
the tide falls, and leaves it again somewhere upon the banks of the 
river. . . . The timber is found lying upon the banks of the river, 
and is taken into the possession and under the care of the defend- 
ant, without any extraordinary exertions, without the least per- 
sonal risk, and in truth with very little trouble. It is, therefore, a 
case of mere finding, and taking care of the thing found for the 

485. Whether a finder can recover compensation for his 
services in respect of the property found seems to have been an 
unsettled question at the time of the decision of Nicholson v. 
1 Nicholson v. Chapman, 2 H. Bl. 354. 



3igitiz eC by GOOgle 



§ 486.] LIEN OF A FINDER OF LOST GOODS. 

Chapman, 1 in 1793. But in a Kentucky case, in 1836, 2 it was 
held that the finder may recover for his time and expenses