ASSUMPSIT for money had and received. The plaintiff had purchased from one Boyne twenty-five hogsheads of sugars then lying in the defendant's warehouses, who was a wharfinger. Boyne was in debt to the defendant to the amount of £167, part of which only was for the charges of these twenty-five hogsheads of sugar, the remainder was for the balance of a general account, for which the defendant claimed a lien, and refused to deliver them to the plaintiffs till the whole sum was paid. The plaintiff's paid him the whole money, and then brought this action to recover it back. The whole question turned upon the point whether a wharfinger had a lien for the balance of a general account upon the goods in his possession. The counsel for the defendant said that it had been decided in three different cases that they had, and called witnesses to prove it, with which the jury seemed completely satisfied. LORD KENYON said, liens were either by common law, usage, or agreement. Liens by common law were given where a party was obliged by law to receive goods, etc., in which case, as the law imposed the burden, it also gave him the power of retaining, for his indemnity. This was the case of innkeepers, who had by law such a lien. That a lien from usage was matter of evidence. The usage in the present case had been proved so often, he said it should be considered as a settled point that wharfingers had the lien contended for. Bearcroft, Shepherd, and Park, for the plaintiff. THIS was an action of trover to recover the value of a quantity of cloth which the bankrupts had sent by the defendants as common carriers, who claimed a lien upon it for their general balance due to them as such carriers for other goods before carried by them for the bankrupts. The plaintiffs had tendered the carriage price of the particular goods in dispute, and the sole question was, whether the defendants, as common carriers, had a lien for their general balance. On the first Action in trover & recover the value Ja quantity of cloth which the bankrupts had sent to the defo as common carriers, who claimed a lien upon it for General balance due to them as such cassiew for other foods before carried by them for the bankrupts. The "The had rendered to carriage price 7 the particular goods in dispute. Tole, question, whether des general balacere. as common carrier had a lien for their sef maintained that there was a general practice on tart) common carrier & retain goode for this several balance. Jmy formed that no such usage ras general & found for Pl. def mosed & cet aside vedect as against all the endence cts for much & way that they how been a in this claim of the carriers. In the absence of a specific general acquiescence contract usage of trade would supply conditions. The Jury expressly found that the no lien on the goods of general reage. had In hr euch lien can exist except for the contract of the partien expressed or implied. that the bankrupts knew it, and understood that they were contracting Cockell, Serjt., now showed cause against the rule. THIS was an action of trover to recover the value of a quantity of cloth which the bankrupts had sent by the defendants as common carriers, who claimed a lien upon it for their general balance due to them as such carriers for other goods before carried by them for the bankrupts. The plaintiffs had tendered the carriage price of the particular goods in dispute, and the sole question was, whether the defendants, as common carriers, had a lien for their general balance. On the first trial a verdict was found for the defendants, which this court thought was not sustained by the evidence, and therefore they granted a new trial. 6 East, 519. The cause was again tried at the last assizes at York, before Chambre, J., when the defendants' book-keepers in London, at Stamford, and at Haddersfield, swore to their practice to retain goods for their general balance, and particularized one instance in December, 1799, where an action was brought, which being referred. was decided on another point; a second in May, 1800, where there was no bankruptcy; a third in May, 1803, where the bankrupt's assignee demanded the goods but afterwards paid the balance; a fourth and a fifth in the same year, when the individuals paid the balance, but no bankruptcy intervened; and a sixth instance, of the like sort as the last, in 1804. In addition to these, Welch, a carrier from Manchester and Leeds, deposed to an instance of retention of goods for the general balance three years back, where a bankruptcy intervened, and the assignees disputed the payment at first, but afterwards paid the balance; and to two other instances of goods sent to Glasgow; one where the carriage of the particular goods was £3 and the general balance £20; another where the carriage was a few shillings and the general balance £8; in both instances bankruptcies intervened, and the assignees paid the general balance. Hanley, a Northallerton carrier, spoke to two instances of retainer of goods, twelve and thirteen years ago, till the individuals paid the general balance; but neither were bankrupts. The book-keeper of Pickford, a carrier from London to Liverpool, particularized an instance of retaining for the general balance in 1792, where the vendee became bankrupt; but there the vendor stopped in transitu, and he paid the general balance at the end of two months; a second similar instance in the same year; a third instance in 1795, where the senders became bankrupts, and their general balance was paid by the vendees; a fourth in 1795, where the goods of an individual, not bankrupt, were detained several years, but no account how the matter was finally settled; and two other like instances in 1794 and 1795. And Clark, a Leicester carrier, also mentioned two instances, one in 1775, the other afterwards, of retaining the goods of solvent individuals till they paid their general balance. All these carriers, who had followed their occupation from twenty to thirty years and upwards, deposed generally to their custom of retaining goods for their general balance in other instances as well as in those particularized. It was left to the jury to decide whether the usage were so general as to warrant them in presuming that the bankrupts knew it, and understood that they were contracting with the defendants in conformity to it; in which case they were to find for the defendants; otherwise they were told that the general rule of law would entitle the plaintiffs to a verdict. On this direction the jury found for the plaintiffs; which was moved to be set aside in last Michaelmas term, as a verdict against all the evidence. Cockell, Serjt., now showed cause against the rule. LORD ELLENBOROUGH, C. J. It is too much to say that there has been a general acquiescence in this claim of the carriers since 1775, merely because there was a particular instance of it at that time. Other instances were only about ten or twelve years back, and several of them of very recent date. The question, however, results to this, What was the particular contract of these parties? And as the evidence is silent as to any express agreement between them, it must be collected either from the mode of dealing before practised between the same parties, or from the general dealings of other persons engaged in the same employment, of such notoriety as that they might fairly be presumed to be known to the bankrupt at the time of his dealing with the defendants, from whence the inference was to be drawn that these parties dealt upon the same footing as all others did, with reference to the known usage of the trade. But at least it must be admitted that the claim now set up by the carriers is against the general law of the fand, and the proof of it is therefore to be regarded with jealousy. 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 observation. If indeed there had been evidence of prior dealings between these parties upon the footing of such an extended lien, that would have furnished good evidence for the jury to have 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 were 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 bankrupt knew of no such usage as that which was given in evidence, or knowing, did not adopt it. And growing liens are always to be looked at with jealousy, and require stronger proof. They are encroachments upon the common law. If they are encouraged, the practice will be continually extending to other traders and other matThe farrier 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. But in the absence of any evidence of that sort to affect the bankrupt, I think the jury have done right in negativing the lien claimed by the defendants on the score of general usage. ters. |