No. 2523.

Book 4, tit. 2, chap. 3, sec. 3, § 3.

No. 2524.

in relation to them, although he has no lien for such expenses, he is not left without a remedy. He may bring a suit against the owner and recover the value of such expenses. The reason assigned for this is, that if the rule were otherwise, ill disposed persons might turn boats and vessels adrift, or horses or cattle into the road, and then take them up, and refuse to give them up until they were paid their alleged expenses; and, therefore, the finder is required, and the law has put upon him the burden, to prove the quantum of his recompense to the satisfaction of the jury.(a)

2523. The lien cannot be acquired by obtaining possession of the goods tortiously; because, if for no other reason, no man can take advantage of his own wrong.(b)

§ 3. Of the claims for which liens attach.

2524. The debts or claims for which liens properly attach, or which are to be secured by the lien, require several qualities, which will be separately considered.

1. In general, liens properly attach on liquidated demands, and not on those which sound only in damages, though, by express contract, they may attach even in such case; as, where the goods were to be held as an indemnity against a future contingent claim for damages. (c)

2. The claim for which the lien is asserted must be due or owing to the party claiming it in his own right, and not merely as agent for a third person. It must be a debt or demand due from the very person for whose benefit the party is acting, and not from a third person, although the goods may have been claimed through him.(d)

(a) Nicholson v. Chapman, 3 H. Bl. 354.

(b) Lempriere v. Pasley, 2 T. R. 485; Madden v. Kempster, 1 Camp. 12. (c) 3 Chit. Com. Law, 548.

(d) Paley, Ag. by Lloyd, 132.

No. 2525.

Book 4, tit. 2, chap. 3, sec. 3, § 4.

No. 2525.

3. The claim may be a particular debt, or a general balance due to the creditor by the owner of the goods. By the custom of the trade, an agent may have a lien upon the property of his employer, intrusted to him in the course of that trade, not only in respect of the management of that particular property, but for his general balance of accounts. To authorize a creditor to retain property under a claim of lien for a general balance, however, the usage of trade must be established to have been uniform and notorious, for although usages of trade enter into every contract, this is only where they are so notorious that they are presumed to be known to the party who is to be bound by them.

This general lien may also be created by the express or implied agreement of the parties; as when a merchant gives notice that he will not receive any property for the purpose of his trade or business, except on condition that he shall have a lien upon it, not only in respect to the charge arising upon the particular goods, but for the general balance of his account. In such case, all persons who, after a knowledge of such notice, deal with him, must be presumed to have acquiesced in it, and they will be bound as if they had expressly agreed to the provisions of the notice. (a)

But when it is the duty of the party to receive the goods, and he cannot refuse, without a violation of some rule of law, as in the case of a common carrier, it would perhaps be considered that he had no right to give such notice.(b)

§ 4.-How liens may be lost.

2525. A lien may be lost in several ways, the principal of which are the following:

1. It may be lost or waived by any act of the

(a) Kirkham v. Shallcross, 6 T. R. 14.

(b) 6 T. R. 14. See Wright v. Snell, 5 B. & Ald. 350; Oppenheim v. Russell, 3 Bos. & Pull. 42; Rushforth v. Hatfield, 7 East, 224.

parties, by which it may be surrendered or become inapplicable.

2. It may be lost by the payment of the debt which is a lien upon the goods, and the satisfaction of such debt by the creation of a new one may have that effect; as where a creditor holds the note of the owner of the goods, and he has a lien in consequence of it, if the parties afterward renew the debt by the creditor's taking a bond, and he gives up the note, with an agreement to cancel the old debt and create a new one, the lien on the goods will be lost.(a)

3. In general, possession is not only essential to the creation, but also to the continuance of the lien; it may, therefore, be lost by voluntarily parting with the possession of the goods. But to this rule there are some exceptions; for example, when a factor by lawful authority sells the goods of his principal, and parts with the possession under the sale, and such sale is made for the benefit of the factor, or the goods are assigned and delivered to a third person by way of pledge or security to the extent of the factor's lien, it is in effect a continuance of the factor's possession, and the lien is therefore retained.

§ 5. Of the effect of liens.

2526. In general, the right of the holder of the lien is confined to the mere right of retainer. By the express agreement of the parties, the creditor may sell the goods on which he has a lien, but unless there is an express or implied contract, the holder has no right to sell them for the debt due him. In special cases there may be an implied power to sell, as where the goods are deposited to secure a loan of money, which is to be returned on a certain day, or where a factor makes advances or incurs liabilities on account of the

(a) Ante, n. 801, vol. i. p. 310.

No. 2527.

Book 4, tit. 3.

No. 2527.

consignment, (a) In some cases where the lien would not confer a power to sell, a court of equity would decree a sale.(b) Courts of admiralty will decree a sale to satisfy maritime liens. (c)

TITLE III.-OF COURTS IN GENERAL.

2527. A court is an incorporeal, political being, created for the purpose of administering justice judicially, and which requires for its existence, the presence of the judges, or a competent number of them, and a clerk or prothonotary, at the time during which, and at the place where, it is by law authorized to be held; and the performance of some public act indicative of a design to perform the functions of a court. According to Lord Coke, a court is a place where justice is judicially administered.(d) This definition has not been adopted, because it is conceived that the court is not a place, but the judges and other officers, properly organized, form the court.

In another sense, the judges, the clerk, or prothonotary, the attorneys, counsellors, solicitors, or proctors, and ministerial officers, are said to constitute the court. (e) And sometimes the judges alone are called the court.

In another place we have considered the organization of the courts under the constitution and laws of the United States, and of the state courts under the state constitutions. In this place it will be proper to take a view of their various kinds, and of their powers and jurisdictions. 1. When considered as to their powers,

(a) Pothonier v. Dawson, 1 Holt, R. 333; 3 Chit. Com. Law, 551; 1 Liverm. on Ag. 103.

(b) 1 Story, Eq. Jur. § 506; 2 Story, Eq. Jur. § 1216; Story, Ag. § 371. (c) Abbott on Ship. part 3, c. 10, § 2; Story, Ag. § 371.

(d) Co. Litt. 58, a.

(e) When treating of the choice of a professional man, a short sketch of the powers and duties of attorney and counsel was given. Vide ante, n. 2418, 2420.

No. 2528.

Book 4, tit. 3, chap. 1.

No. 2529.

they are of record and not of record; 2, when compared to each other, they are supreme, superior and inferior; 3, when examined as to their original jurisdiction, they are civil or criminal; 4, when viewed as to their territorial jurisdiction, they are central or local; 5, when divided as to their objects, they are courts of law, courts of equity, admiralty courts, and courts martial.

CHAPTER 1.--OF COURTS OF RECORD AND NOT OF RECORD.

2528.-1. By the common law, a court of record is one where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony; which rolls are called the records of the courts. In the United States the acts and proceedings of such courts are written in books kept for that purpose, or in papers kept on file in the offices of the clerks or prothonotaries. The test of a court of record is whether it has or has not the power to fine and imprison; a court which possesses that power is a court of record, all other courts are not of record. (a) In this country a court which does not possess common law jurisdiction, and a seal, and a clerk or prothonotary, for the purpose of engrossing and keeping its proceedings, would not be considered a court of record.

The act of congress to establish an uniform rule of naturalization, etc., approved April 14, 1802, enacts that, for the purpose of admitting aliens to become citizens, that any court of record in any individual state, having common law jurisdiction and a seal, and a clerk or prothonotary, shall be considered a district court, within the meaning of that act.

2529.-2. All courts which do not come within the definition of a court of record, are courts not of record.

(a) Bac. Ab. Courts, D 2.