is recoverable When premium be returned "if the ship sail with convoy and arrives," this shall be returned, though the insurer be obliged to pay any partial loss on those goods, provided the ship arrives. (1) back. The remedy for breach of policy of insurance. It is a general custom throughout Europe, to allow one half per cent., which is allowed to the insurer, where the contract is void from some radical defect, provided this was unknown to him at the time he entered into the contract; but if he was informed of the fault, or must have known it before subscribing the policy, he can have no claim to this allowance. (2) The usual remedy or form of action against the insurers or underwriters, to recover a loss upon a policy of insurance not under seal, is an action of assumpsit formed on the express undertaking of the insurers who have signed the policy; if the policy be under seal, the action thereon must be in covenant. The two insurance companies, namely, the Royal Exchange and London Assurance, having been, in consequence of the stat. 6 Geo. 1. c. 18., incorporated by several charters granted, and having a common seal affixed to all their contracts, the proceedings against these companies must be by action of debt or covenant. If there has been a double insurance, then it will be proper to consider against which of the underwriters (as the best man, or in the best circumstances) the action shall be brought. In actions upon a policy of insurance against several underwriters, the court by consent of the plaintiff will make a rule on the application of the defendants, which is called the consolidation rule, for staying the proceedings in all the actions except one, upon the defendants undertaking to be bound by the verdict in that action, and to pay the amount of these several subscriptions and costs, in case a verdict shall be given thereon for the plaintiff. (3) (1) Dougl. 255. 2 Bos. & P. 11. (3) Tidd's Practice, 7 ed. 635. See 2 N. R. 430. CHAP. XI. Of Liens. how created in We have now to consider the liens and securities created by law, or entered into by the parties, in order to secure the performance of those contracts which have been examined. Lien (1), in its most limited signification, is a right of detaining the property of another until some demand be satisfied (2). The Definition, and right of lien generally arises by operation of law, but in some cases general. it is created by express contract. When it arises by express contract, it is a right more in the nature of a pledge or deposit. There is, however, a very trifling, indeed scarcely any difference between these rights, and in general the benefit arising from each of them is the same. (3) liens. There are two descriptions of liens, viz. particular and general. Different deParticular liens are where persons claim a right to retain scriptions of property, in respect of labour or money expended on such particular property, and these liens are favoured (4), unless the interests of creditors in general are injured by them (5). General liens are claimed in respect of a general balance of account, and are looked upon with jealousy (6). Liens may arise in three ways. 1st. By express contract. 2d. By implied contract, as from general or particular usage of trade. 3dly. By legal relation between the parties. (7) We will now proceed to consider, 1st, How these different sorts of liens may be created, and what persons are entitled to 25. (1) See Whitaker's Law of Lien. Montague on Liens. Ellis, Law of Debtor and Creditor, 220. (2) See 2 East; 235. 6 East, 2 Camp. 579. 2 Merivale, 404. 2 Rose, 357. (3) See 4 Taunt. 642. Holt, C.N.P. 383. 6T.R. 263. 2 Merivale, 404. 1 B. & A. 582. See distinction between a lien and a set-off. Whit. on L. 3., see post, tit. Set-off. (4) See 1 Atk. 228. Amb. 252. 119. 6 T. R. 14. 7 East, 228. (7) This division is laid down In what cases a particular lien may be acquired. 1st. By express contract. 2d, By an im plied contract, as by usage of trade, &c, them. 2dly, The necessary requisites of liens in general. 3dly, Rights and liabilities of party claiming the lien. 4thly, How a lien may be determined. 5thly, How a lien may be revived. A particular lien may be acquired in any case where the parties, either by parol or in writing, expressly stipulate for it, which is generally either where the goods are placed in the hands of a person for the execution of some particular purpose on them, with an express contract that they shall be considered as a pledge for the labour or recompence the execution of that purpose may occasion; or where property is merely pawned or delivered for bare custody to another, for the sole purpose of being a security for a loan made to the owner on the credit of it (1), though indeed, as we have before seen, this species of lien may be considered more in the nature of a pledge. By an express agreement the parties may, by the introduction of a stipulation to that effect, waive or prevent a lien, which would otherwise be created by usage of trade, or by legal relation. In many respects this manner of creating a particular lien is advantageous, as the parties know more decidedly how to act. (2) A particular lien may exist where there is a long established general usage of trade to that effect, or where there is a particular usage of trade between the parties themselves, which in effect might be considered as an implied contract for the lien. The existence and extent of liens created in this manner are matters of evidence (3). Where there is any transaction between the parties which is out of the usual course of trade, then indeed no lien can be created by usage, as if goods be deposited in the nature of a pledge for a particular purpose (4); and where a carpenter, who had worked for some time in the queen's yards, declined working there any longer, and the surveyor refused to let him take away his tools, on the ground that there was an usage for the surveyors of the queen's yards to detain the tools of workmen, in order to compel them to continue working (1) Cro. Car. 271. 6 T. R. 14. Chan. 580. 1Esp. 109. 3 B. & Whitaker, 27. P. 42. The mere opinion of witnesses is not sufficient to prove such usage. 4T.R. 260. Cowp. (2) 6 T.R. 258. 7 Taunt. 14. 278. 50. Bull. N. P. 45. 3M.& S. 167. (3) 6 T. R. 14. 1 Esp. 109. 3 Esp. 81. 1 Atk. 228, 235. Pre. 251. (4) 6 T.R. 258. 3 M.&S. 167. until the queen's work should be finished, it was decided that the of particular surveyor could not detain them on that ground. (1) liens. lation. So a particular lien may be created by legal relation in two 3d, By legal reways. 1st, Where the law throws an obligation on a party to do a particular act, and in return for which, to secure payment, it gives him such lien (2); and 2dly, where, from circumstances, a party has bestowed his labour and expence upon the property detained, thereby creating a moral and legal obligation on the owner of such property to make a remuneration before he can take them away. Upon the first principle it has been held that common carriers (3), innkeepers (4), and farriers (5), have a particular lien for their respective labours and expences in regard to their particular employments. Upon the second, it may be taken as a general rule, that wherever goods are delivered to a tradesman, or other person, for the execution of the purposes of his trade or occupation upon them, and he incurs expence and trouble in the execution of such purposes, he has a particular lien upon them (6). Thus calico printers (7), dyers (8), fullers (9), millers (10), packers(11), printers (12), tailors (13), and wharfingers (14), have a particular lien on goods, linen cloth, corn, or prints, dyed, printed, fulled, ground, packed, made up, or wharfed by them respectively, such property having been left with them respectively for those (1) 6 Mod. 212. Bac. Ab. tit. Trover. (2) 1 Esp. 109. 6 East, 519. 2 Lord Raym. 866. 6 T. R. (3) Lord Raym. 867. 17. 3 Bos. & P. 42. As to who are carriers, and their responsibility, &c., see ante 369. (4) Id. ibid. 1 Esp. 109. As to who are innkeepers, and their liabilities, see ante 365. (5) Bac. Ab. tit. Trover, E.694. Yelv. 67. Whitaker, 113. (6) 1 Atk. 228. 235. As exceptions to the above rule it has been decided, but upon what ground it is not easy to imagine, that agisters of cattle (Cro. Car. 271.) and livery stable keepers (Lord Raym. 866. Of particular li ens. purposes. It has been doubted whether a warehouseman has a lien for warehouse rent (1); but a shipwright has a lien upon a ship for repairs done to it in his dock. (2) The master or owner of a ship, whether it be a general or chartered one, has a lien upon the cargo or luggage (but not the wearing apparel actually in use) (3) of a passenger for freight, passage-money, primage, average, or salvage, and is not bound to part with it till his demands in this respect are satisfied (4). And the master has a lien upon the goods for freight, though the goods be furnished to the ship by his direction and on his credit (5). But the shipowner has no lien for dead freight, where the remedy is in damages (6), and the owner has not a lien for dead freight or demurrage under a covenant, where the freighter binds the goods and merchandizes in the ship in a penal sum for non-performance of the covenants (7). And the master or owner of a ship has no lien on the cargo for wharfage, convoyage, &c. against the directions. or contract with the owners of the cargo, nor for any other charges which are incidental to the ship, and not to the cargo (8). The captain of a ship has no lien on the ship, or freight, for his wages, or for money expended, or debts incurred by him for repairs done to it here or on the voyage (9), though under circumstances a court of equity will allow him this lien (10); and no person has a lien on the ship for necessaries provided in England (11). But it has been ruled that the captain has a lien on the freight for goods furnished to the ship by his direction, and on his credit (12). And the consignee of a ship for sale, to whom the ship and ship's register is delivered, has a lien upon the register of the ship, and of the ship for money which, after 3 Burr. 1409. 3 Campb. 360. 1 Esp. Repts. Laubert v. Robin son. (9) Dougl. 101. 9 East, 426. 13 Ves. 300. Abbott, .35 1 B. & A. 581. (10) 2. P. Wms. 269. 19 Ves. 474. 3 Ves. & B. 135. (11) 2 Show. 338. Salk. 34. Lord Raym. 809. Abbott, 135. 1 Ves. 154. 1 Atk. 234. Dougl. 97. 2 P.Wms. 367. Cowp. 636. 1 T. R. 109. 4 Esp. 23. 7T.R. 313. 1 B. & A. 581. (12) 4 Esp. 22. |