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Grose, J. This lien is attempted to be set up by the defendants, not upon the ground of any particular contract or previous transactions between them and the bankrupt, but on the ground of previous transactions between them and other parties, and between other carriers and their customers. And it is admitted that the question upon this evidence was properly left to the jury, that they might find a verdict for the defendants, if the usage for the carriers to retain for their balance of account were so general as that they must conclude that these parties contracted with the knowledge and adoption of such usage. The jury have found in the negative. And I take it to be sound law, that no such lien can esist except by the contract of the parties expressed or implied.
LAWRENCE, J. The most which can be said on the part of the defendants is, that there was evidence which might have warranted the jury to find the other way, but it was for them to decide. This is a point which the carriers need not be so solicitous to establish. It is agreed that they have a lien at common law for the carriage price of each particular article. If then it be not convenient for the consignee to pay for the carriage of the specific goods at the time of delivery, it is very easy for the carriers to stipulate that they shall have a lien for their balance upon any other goods which they may thereafter carry for him. It is not fit to encourage persons to set up liens contrary to law. The carriers' convenience certainly does not require any extension of the law; for they have already a lien for the carriage price of the particular goods, and if they choose voluntarily to part with that, without such a stipulation as I have mentioned, there is no reason for giving them a more extensive lien in the place of that which they were entitled to. I should not be sorry, therefore, if it were found generally that they have no such lien as that now claimed upon the ground of general usage.
LE BLANC, J. This is a case where a jury might well be jealous of a general lien attempted to be set up against the policy of the common law, which has given to carriers only a lien for the carriage price of the particular goods. The party, therefore, who sets up such a claim ought to make out a very strong case. But upon weighing the evidence which was given at the trial, I do not think that this is a case in which the court are called upon to hold out any encouragement to the claim set up, hy overturning what the jury have done, after having the wbole matter properly submitted to them.
CHASE v. WESTMORE.
King's Bench. 1816.
(Reported 5 M. & S. 180.] TROVER for a quantity of wheat-meal, fine pollard, coarse pollard, and bran, together with some sacks which were stated in the first count of the declaration to be the property of the bankrupts, and in the second count, of the plaintiffs as their assignees. On the trial before Graham, B., at the Hants Spring Assizes, 1815, a verdict was found for the plaintiff for £1200, subject to the opinion of the court upon the following case :
The bankrupts were, before their bankruptcy, in partnership as mealmen, the defendants were partners as millers. One of the bankrupts, before the act of bankruptcy, applied to the defendants to grind a quantity of wheat, when it was agreed between them that the wheat should be sent by the bankrupts in their vessels, and that the defendants should grind it at 158. per load, for which sum the defendants were to unload the wheat from the vessels, grind it, find sacks to manufacture it in, and return the meal, &c., when ground, into the bank. rupts' vessels in the river near to which the mill was situated. About nineteen loads of the wheat were sent at first, afterwards other quantities, making in the whole one hundred and forty-six loads. It was agreed that if any mixture was to take place, one of the bankrupts should correspond with the defendants on the subject, and, in fact, some of the grain was afterwards mixed at his request. At the time of the bankruptcy there remained in the defendants' possession seven loads of wheat unground, ten of meal produced by wheat which had been ground, sixty bushels of fine pollard, twenty bushels of coarse pollard, twenty bushels of bran, also produced from the wheat ground, and eighty sacks which had been delivered by the bankrupts to the defendants, for the purpose of being filled with the meal ground from the corn. The defendants, on demand made on the part of the plaintiffs, after the bankruptcy, refused to deliver up this property.
And two questions were argued in the last term by A. Moore for the • plaintiffs, and by Gifford, for the defendants: First, whether the defendants bad a right to detain this property for their general balance under the statute of 5 G. 2, c. 30, s. 28. Secondly, whether they had a
lien on it, in whole or in part, that is to say, for the balance due to them for grinding all the wheat which had been ground by them, or for the grinding only of such part as had been and remained ground in their hands at the time of the bankruptcy.
Lord Ellenborough, C. J., observed that the court did not think this case necessarily involved the doctrine of mutual credit; but on the other point, as it involved the consideration of several ancient authorities, the court would take time to consider.
Cur. adv. vult.
LORD ELLENBOROUGH, C. J., now delivered the judgment of the court. This case was argued before us last term, and stood over for our
bestowed his labor upon a chattel, in consideration of a price or reward fixed in amount by his agreement with the owner, at the time of its delivery to him, can, by law, detain the chattel until the price be paid, or must seek his remedy by action, no time or mode of payment having been appointed by the agreement. We were all of opinion, upon the argument, and still are, that if a right to detain exists in the general case that I have mentioned, the present defendants have a right to detain the goods in question, for the money due to them for grinding all the wheat; because we consider the whole to have been done under one bargain, although the wheat was delivered in different parcels, and at different times. The general question is of very great and extensive importance. Several authorities were referred to (which I shall hereafter notice) against the right to detain ; but if these authorities are not supported by law and reason, the convenience of mankind certainly requires, that our decision should not be governed by them; and we believe the practice of modern times has not proceeded mpon any distinction 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, 2 Campb. 631, Mr. J. Lawrence does not appear 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 158. Aload, 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, he may detain it until I pay him, though probably 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 (and it must be so considered in this case), 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 ; but, 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 earliest of them is to be found in 2 Roll. Ab. 92, which, however, is only a dictum of Williams, J.; and it does not appear on what occasion it was pronounced, or that it governed the decision of any case. It is in these words : “If I put my clothes to a tailor to make, he may keep them until satisfaction for the making. . . . But if I contract with a tailor that he shall have so much for making my apparel, he cannot keep them until satisfaction, for the making. T. T. 3 Ja. K. B., by Williams, J.” This distinction appears to have been acknowledged by Lord Holt, in a case of Collins v. Ongly, Selw. N. P. 1280, 4th edit., as quoted by C. J. Ryder, in the case of Brenan v. Currint. But the point was not in judgment before Lord Holt, and therefore the opinion then delivered by him, although entitled to great respect, has not the weight that would belong to a judicial decision of that very learned judge. The latter case of Brenan y. Currint is reported in Sayer, 224; and it is, as far as we can find, the only case wherein this distinction was made the founda. tion of the judgment of any court. It was there carried to the extremest limit; for the contract was only to pay a reasonable sum, which is no more than the law wculd have implied if the parties had not expressed it. The opinion of Popham, C. J., in the Case of the Hosteler, Yelv. 66, has sometimes been cited, as an authority for this distinction ; but the only distinction plainly expressed on that occasion applies to the sale of a horse for his keep, and not to a detainer of the animal. The Chief Justice there says, “ That an innkeeper cannot sell a horse for his keep, where the price of it has been agreed upon, though he may do so if there has been no agreement for the price ; ” but the power of sale in the case there put has been since denied. See Jones v. Pearle, 1 Stra. 556. The case in Yelverton was an action for the keep of the horse ; and all that was said by the Chief Justice as to detainer and sale was extra-judicial. It was in the very same year, term, and court, in which the opinion of Williams, J., is said to have been delivered ; and if (as seems very probable) his opinion was delivered on this occasion, it was extra-judicial also. The case of Chapman v. Allen, Cro. Car. 271, has also been quoted on this subject; that case, however, does not appear to have been decided on the ground supposed; but rather on the ground that a person taking in cattle to agist could not detain until the price be paid ; or if he could in general do so, yet that in the particular case the defendant was guilty of a conversion as against the plaintiff, who was a purchaser of the cattle, by having delivered them over to a third person, on receive ing from such third person the amount of his demand. In Cowell v. Simpson, 16 Ves. 275, the Lord Chancellor considers a lien as a right accompanying an implied contract; and in one passage of his judgment he is reported to have said, “ If the possession commences under an implied contract, and afterwards a special contract is made for payment, in the nature of the thing the one contract destroys the other ;” but it is evident, from other parts of the report, that the Lord Chancellor was there speaking of a special contract for a particular mode of payment. Such a contract is apparently inconsistent with a right to detain the possession; and, consequently, will defeat a claim to the exercise of such a right. And we agree that where the parties contract for a particular time or mode of payment the workman has not a right to set up a claim to the possession inconsistent with the terms of his contract. And if Williams, J., is to be understood to speak of a contract for the time, as well as the amount of payment, his opinion will not be contrary to our present judgment; and the authorities built upon it will have been founded on a mistake. And we are inclined to think that he must have intended to express himself to tkat effect; because the earliest authority that we
have met with mentions an agreement for the time of payment, but makes no distinction between an implied contract and a contract for a determinate price. This authority is in the Year Book, Easter Term, 5 Edw. 4, fol. 2, b. : “ Note, also, by Haydon, that an hosteler may detain a horse if the master will not pay him for his eating. The same law is, if a tailor make for me a gown, he may keep the gown until he is paid for his labor. And the same law is, if I buy of you a horse for 208., you may keep the horse until I pay you the 208.; but if I am to pay you at Michaelmas next ensuing, here you shall not keep the horse until you are paid.” In this passage the law, as applied to the cases of the hosteler, the tailor, and the vendor, is said to be the same, and in the latter the sum is supposed to be fixed. The distinction drawn is where a future time of payment is fixed. If so material a distinction as that which depends upon fixing the amount of the price, had been supposed to exist at that time, we think it would have been noticed in this place; and, not being noticed, we think it was not then supposed to exist. So, in the case of Cowper v. Andrews, Hobart's Rep. 41, Lord Hobart, speaking of the word " pro," “ for,” says that this word “works by condition precedent in all personal contracts. As if I sell you my horse for ten pounds, you shall not take my horse, except you pay me ten pounds (18 Ed. 4, 5, and 14 H. 8. 22), except I do expressly give you day; and yet, in this case you may let your horse go, and have an action of debt for your money ; and so may the tailor retain the garment till he be paid for the making, by a condition in law.” The reason in the case of sale is given in the 14th Hen. 8, 20, a. : “ The cause is for that each bas not the same advantage the one against the other; for the one will have the thing in possession, the other but an action, which is not reason, nor the same advantage.” Considering the operation of the word “ for," as noticed by Lord Hobart, whose opinion is confirmed by the cases he refers to, and by others also, no reason can be assigned for saying that it shall not have the same effect in a contract to grind a load of wheat for 158. as in a contract to sell a load of wheat for £15. The former, indeed, is in substance a sale of a certain portion of the time and labor of the miller, and of the use of his machinery. And as it is clear that the miller could not maintain an action upon the contract without averring that he had ground, and was ready to deliver, the wheat; if the other party can by law recover the wheat without averring that he had paid or tendered the price of the grinding, he will have an advantage above the miller ; for he will have his goods and the miller will have only an action. If the distinction which has been contended for on the part of the plaintiff should be allowed, what must be said in those cases where a workman is not only to bestow a portion of his labor on a chattel delivered to him, but also to apply to it some materials or goods of his own, for a fixed price? As in the case of a picture frame sent to be gilded or varnished, and even in the old case of cloth sent to a tailor to be made into a garment, is the chattel to be retained by the work