Lien is a right to hold possession of another's property, for the satisfaction of some charge attached to it. The essence of the right is possession; and whether that possession be of officers of the law, or of the person who claims the right of lien, the chattel on which the lien attaches is equally regarded as in the custody of the law. (a) l
Lien is neither a jus ad rem nor a jus in re, but a simple right of retainer. It is not therefore attachable as personal property, or as a chose in action, of the person who is entitled to it. (b)
The origin of the right of lien has been ascribed to the Soman law. That law gave to the seller a right, which was substantially similar to that which the common law gives by lien; for if the buyer did not pay the money when it was due, and the seller had not delivered the goods, he might retain possession of them as a pledge. But what the common law treats as held by a lien, the civil law regarded as and called a pledge, and applied to it the whole law of pledge, (c) The Roman law went further than the common law, and vested in a vendor a right of seizure, after delivery to a vendee, or even to a sub-vendee, if payment of the price was not duly made. By the common law, a sale of the goods passes to the purchaser the property therein; and after delivery the vendor cannot recover them back again, though the vendee immediately became bankrupt.
* Taking its rise in the principles of natural equity and commercial necessity, the doctrine of lien was recognized to a limited extent, at an early period, and in process of time was much extended in its application, upon considerations of policy and convenience as well as of justice. The earlier form of lien was specific in its nature, and is distinguished by law as a particular lien; which is a right to retain a designated piece of property for a claim attached to that same property. Where not arising from a contract of sale, this form of lien seems to have been confined originally to transactions in which the justice or necessity of the case peremptorily demanded its allowance; as where the party invested with the right was obliged by law to receive goods or where he had, at his own peril, labor, and expense, saved them from loss or destruction at sea, when the owner was unable to protect them. At a later period, the particular lien was admitted "in many instances not characterized by the obligation of duty, or the self-sacrifice above alluded to; and a general lien, or a right to retain property of another on account of charges not attaching to that specific property, existing at first only by express contract, was also allowed to be claimed, by implication, from the general usage of trade, or the mode of dealing between the parties, and without any express contract to that effect.
(a) Moss v. Townsend, I Balstr. 207. (b) Meany v. Head, 1 Mason, 319. (c) Domat, lib. 1, tit 2, sec. 3, art. 3. The rule cited by Domat from the civil law was this: venditor, pignoris loco, quod vendidit retinet, quoad emptor satisfaciat.
1 Thus brokers, not being usually entrusted with the possession, do not have a general lien, but may be in a situation to exercise the right of a particular lien, Barry v. Boninger, 46 Md. 59. - K.
The right of lien as well as the statute right of set-off, operates to prevent circuity of action, but the two differ in several respects as to their operation. Set-off applies only to demands arising ex contractu; lien applies as well to those sounding in tort; set-off is barred by the statute of limitations; lien is not; and set-off applies to all debts mutually due in the same right, while lien is restricted to the particular debt for which it is security. Nor, except by agreement, can a debt owed by the party holding a lien, be set-off against that for which he holds the lien, (d)
(d) Pinnock v. Harrison, 8 M. ft W, 532. This was an action of trover for a Quantity of iron materials, which were furnished to the defendant by the insolvent of the plaintiffs, to be made into a carriage. After the work had been commenced by the defendant, and before the bankruptcy of bis employer, he bought a second-hand carriage of the latter, paying part cash, and owing part on account. At this time he promised to send home the new carriage, finished or unfinished, in two days, and to send in the account. This the defendant did not do; but he subsequently finished the carriage, and upon the failure of the owner, it was claimed of the defendant by the assignees. The charges for making the carnage amounted to £8, upon which amount the defendant claimed a lien upon the carriage; the balance owed by the defendant on account of the second-hand purchase was about £9, which the assignees claimed to offset against the defendant's chare© for work. It was contended, on behalf of the plaintiffs, that, under these circumstances, and considering the state of the accounts, no lien could arise; and, secondly, that even if it could, it had been waived by the defendant's promise to return the carriage, finished or unfinished. These two points being overruled, the case- came up for argument upon them in the Exchequer of Pleas, and the court gave judgment for the defendant. Per Lord Abinger, C. B.: "A set-off cannot be considered as destroying a lien, unless it be where the deposit * is by way of security for a loan, the lender, it seems, may sell upon default of payment. (f)1 This power is, however, usually restrained and regulated by statute; and by other enactments provision is made for the sale of property held under other liens than those of security for loans.
* In general, a lien confers no power to sell, even where the keeping would be attended with expense; (e)l but so agreed upon between the parties; and as to the rest, ray opinion is, that there was no binding agreement entered into to send the goods home at a particular time; there was a proposal and nothing else; a promise to do so without consideration, but no binding agreement; and it appeared to me that that proceeded on the understanding that defendant was to go on and finish the work." Parke, Holland, and Alder son, the other Barons present, ail gave opinions clearly maintaining that a claim of set-off is no answer to a lien, unless by agreement.