1902 Encyclopedia > Lien


LIEN, in English and American law, properly means a right of detaining goods of another in your possession until a debt due to you from the owner of the goods is paid. To the original or common law conception of a lien it would appear to be necessary that the goods over which lien is claimed should be actually in the possession of the creditor, and further that the debt should have been incurred with reference to the goods which are detained. Such is the lien of the workman to whom articles are delivered for the purpose of being operated upon by him in the way of his trade. He is entitled to keep the article he has worked at until remuneration for his labour has been made to him. Of precisely the same character is the lien of the carrier over the goods conveyed by him, for the fare; of the farrier over the horse which he has cured, for his fee; of blacksmiths, shipwrights, and other artificers for the wages they have earned by working at or on the thing detained. This, the true lien of the English law, is denominated a particular lien in contradistinction to a right of detainer exercisable over the property of another for a debt not incurred in relation to the thing detained. The latter is a general lien. The former is said to be favourably, the latter strictly, construed by the law. The former arises by implication of law from the relation of the parties; the latter requires a special contract either expressed in terms or to be inferred from the usage of trade. Again, as pos-session is the foundation of lien in common law, a parting with the possession would in general operate as a waiver or forfeiture of the lien. The same effect would follow of course from any agreement by the lien holder to give up his right while retaining possession of the property. Again as a general rule lien means only a right of deten-tion, not a power of sale,—a fact which distinguishes it from a pledge of property in security for a loan. But in special cases powers of sale have by statute or judicial decision been added to liens. Thus innkeepers now have, in addition to their ordinary right of lien, power to sell goods and chattels left with them after six weeks (41 & 42 Vict. c. 38). In the United States the principle of the particulir lien has been developed in a notable manner in protecting the rights of workmen employed in building. At common law, the building belongs absolutely to the owner of the soil; and accordingly, when a house is erected by contract, the contractor may receive payment from his employer and may fail to pay the labourers he has employed, who are consequently left without redress. The " mechanics' liens," created by statute in several of the American States, give labourers a lien over the build-ing which they have erected for their unpaid wages. Notice having been filed in the prescribed manner, they acquire a right to have their wages paid out of the property, which may if necessary be sold for that purpose. A similar preferential charge, not depending on possession, is recognized by the law in various cases, and goes by the name of lien. Thus in equity an unpaid vendor has a charge for the amount of the purchase money, or the balance thereof, over the estate, although it may no longer be in his possession. Charges of this kind are sometimes denominated equitable liens. Of the same nature is the charge acquired over a ship by a person who has supplied her with necessaries for the voyage under a lawful contract with the master (maritime lien).

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