to certain property, real or personal, and the award will be conclusive between them.1

162

2505. The remedies which are effected by operation of law are three in number, namely: retainer, remitter, and lien; they will be considered in order.

2506. Retainer is the act of withholding what one has in one's hands by virtue of some right. The subject will be considered by inquiring who may retain, against whom, on what claims, and what amount may be retained.

2507. An executor or administrator has a right to retain in certain cases for a debt due to him by the estate of a testator or intestate. In inquiring into this right it is natural to consider those cases where there is but one executor or administrator, and where there are several.

2508. A sole executor may retain in those cases where, if the debt, instead of being due to him, had been due to a stranger, such stranger might have sued the executor and recovered judgment; or where the administrator might, in the due administration of the estate, have lawfully paid the same.163 He may, therefore, retain a debt due to himself,164 or to himself in right of another,165 or to another in trust for him; 166 the debt may also be retained when administration is committed to another for the use of the creditor, who is a lunatic or an infant.167 An executor may retain before he has proved the will, and when he dies, after having intermeddled with the goods of the testator and before probate, his executor has the same power."

168

2509. When there are several executors, and one has a claim against the estate of the deceased, he may retain with or without the consent of his coexecutors; 169 when there are several creditors among the executors of equal degree and the estate is insolvent, they are entitled to retain pro ratá.170

2510. The right of retainer may be exercised where the deceased was bound alone, where he was bound with others, and where the executor of the obligee is also executor of the obligor.

2511. Where the deceased was the sole obligor and the executor was his creditor, the latter has a clear right to retain.

2512. Where there are several debtors jointly and severally bound and one of them appoints the obligee his executor,171 or the obligee takes out letters of administration to his estate, the debt is immediately satisfied by way of retainer when the executor or administrator has sufficient assets. But in such case the other debtors will be liable to the executor, qua executor, to contribute to the payment of the debt, unless the testator was the actual debtor and the other obligors were his sureties.

2513. If the obligee make the executor or administrator of the obligor his own executor, it is a discharge of the debt if as executor or administrator of the debtor he has assets sufficient; but if he has fully administered, or if no assets of the debtor's estate have come to his hands, it is no discharge, for there is nothing for him to retain.

2514. Of the claims the executor may retain, we must consider their priority and their nature.

162 Doe v. Rosser, 3 East, 11; Blanchard v. Murray, 15 Vt. 548; Shelton v. Alcox, 11 Conn. 240; Cox v. Jagger, 2 Cow. N. Y. 638; Whitney v. Holmes, 15 Mass. 153; Shepherd v. Ryers, 15 Johns. N. Y. 497. See Tevis v. Tevis, 4 T. B. Monr. Ky. 47; Evans v. McKinsay, 6 Litt. Ky. 263.

171 Bacon, Abr. Executors, A, 9; Comyn, Dig. Administration, c. 1.

Nearly all systems of law give some debts a priority over others in the case of an insolvent estate; funeral expenses, physician's bill for the last sickness of the deceased, and some others, have a preference over others in perhaps all the states of the Union. It would be difficult to make a table showing the order of paying the debts of an insolvent estate in each state, and it would lead to no practical result.

An executor having a claim of a particular class cannot retain assets to pay himself to the injury of a creditor of a class having a preference over him; and the reason for this, independently of any statutory provision, is clear; he could not, by bringing a suit against himself, have obtained any advantage or recovered in prejudice of such a creditor.172 He may retain only where he has a superior claim or one of equal degree,173 and in the latter case only pro ratá.

In a case where two were jointly bound in a bond, one as principal and the other as surety, after which the principal died intestate and the surety took out administration to his estate, the bond being forfeited, the administrator paid the debt, it was held he could not retain as a specialty creditor because being a party to the bond it became his own debt,174 and having paid it, he became a simple contract creditor and might retain as such.175

As to the nature of the claim for which an executor may retain, it seems that damages which are in their nature arbitrary cannot be retained, because till judgment no man can foretell the amount; such as damages upon torts. But when the damages arise from a breach of a pecuniary contract there is a certain measure for them, and such damages may well be retained.

As the executor is not bound to plead the act of limitations against a just debt, the act shall not operate against him.176

2515. The extent of the right of retainer depends upon the fact whether the estate is solvent or insolvent.

When the estate of the testator is solvent, the executor may of course retain the whole of the debt due to him, together with interest.

When the estate is insolvent, his right to retain is then limited by the rights of other creditors who are entitled to be paid as well as he.. By the common law of England a creditor could gain an advantage by bringing a suit against the executor and obtaining the first judgment, and as the executor could not bring such a suit, he was allowed to retain the whole of his claim in preference to all other creditors, to compensate him for this want of capacity of suing himself.177 In most of the states of this Union a more equitable mode of making payment in cases of insolvent estates has been adopted, and no one is allowed to gain an advantage by bringing a suit against the executor; it follows, therefore, that the executor can lose nothing by his want of capacity of suing himself, and the law gives him the right to retain that to which he would have been entitled if he had not been an executor, and no more. He may retain his debt pro rate with other creditors. Such is the case in Alabama, Connecticut, Illinois, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire, Ohio, Pennsylvania, Rhode Island, South Carolina, and VerIn some of the other states the common law right exists.

mont.178

2516. Remitter takes place when he who has the true property, or jus proprietatis, in lands is out of possession, and has no right to enter without re

172 Bacon, Abr. Executors, A, 9; Comyn, Dig. Administration, A, 9.

173 3 Sharswood, Blackst. Comm. 18; 11 Viner, Abr. 261.

11 Viner, Abr. 265. But see Dorsheimer v. Bucher, 7 Serg. & R. Penn. 9.

176 Comyn, Dig. Administration, c. 2, n.

176 1 Maddock, Ch. Pr. 583.

177 3 Sharswood, Blackst. Comm. 18; 11 Viner, Abr. 261.

178 Griffith, Reg. Retainer.

covering possession in an action, has afterward the freehold cast upon him by some subsequent and of course defective title; in this case he is remitted or put back by operation of law to his ancient and more certain title. This right of entry which he has gained by a bad title is, ipso facto, annexed to his own inherent good one, and the defeasible estate is utterly defeated and annulled by the instantaneous act of law without his participation or consent. For example, if a tenant in tail discontinue the estate by a conveyance in fee, afterward disseise the continuee or grantee, and die seised, his heir shall hold as heir in tail under the original title, and not under the title acquired by the disseisin. By the operation of law he is instantaneously remitted to his better title. The reason assigned for this is that being so remitted the owner has no means of asserting his title, because, being in possession, he cannot sue himself, and to prevent his loss the law places him in the same situation as if he had established his right by suit.

In order to enable the owner of the land to take advantage of this principle the title must be cast upon him by the law, as by descent; for if he undertakes to buy the subsequent estate or right of possession, he is considered as having waived his prior right, and he is not therefore remitted.179

2517. A third mode of acquiring a remedy by operation of law is by lien. In its most extensive signification this term includes every case in which real or personal property is charged with the payment of any debt or duty, every such charge being denominated a lien on the property 180 In a more limited sense, and in that in which it is here used, it is the right of detaining the property of another until some claim is satisfied.

Besides the liens which arise by operation of law, there are others created by the express contracts of the parties.

Liens may be considered as to their kinds, as to the manner of acquiring them, as to the claims on which they attach, as to the manner of losing them, and as to their effect.

2518. When a person has a right to retain property in respect of money or labor expended on such particular property, this is a particular lien. For example, where a tailor has made garments out of cloth delivered to him for the purpose, he is not bound to part with the clothes until his employer has paid him for his services; nor the ship carpenter with a ship which he has repaired; nor can an engraver be compelled to deliver the seal which he has engraved for another until his compensation has been paid.181

179 3 Sharswood, Blackst. Comm. 20.

180 In this general sense a judgment obtained in a court of record is generally a lien upon real estate; an execution when put in the sheriff's hands, upon personal property. By statute many liens are created; as, for example, recognizances and other obligations of record are sometimes made liens; and persons furnishing materials, or doing work for the construction of a building, have a lien upon it by statute in several of the states of the Union. By the civil law this right existed: a person who furnished materials, or performed work on a building, had the privilege of hypothec. Dig. 20, 2, 1; Dig. 42, 6, 9, 1. The government has a lien for taxes, upon the real estate on which they have been assessed. A landlord has a lien on the goods of his tenant while on the premises for one year's rent, in preference to an execution creditor.

The liens which are here treated of, which may be called common law liens, being merely the right of retaining possession, are of course dependent on possession. Some equitable liens are dependent on possession, and some are not. Maritime liens do not arise from or depend upon possession at all. The principal statutory liens are judgment liens and liens of material men, and mechanics. A judgment lien exists in the states, except in New England, where it is replaced by attachment on mesne process. The mechanic's lien is regulated entirely by statute and exists in most, if not all, of the states. It does not depend on possession, but must be enforced in the method prescribed by the statutes.

f81 2 Rolle, Abr. 92; Blake v. Nicholson, 3 Maule & S. 167; Townsend v. Newell, 14 Pick. Mass. 332.

2519. A general lien is one which binds all the property of the debtor in the hands of his creditor; as, where an agent has advanced moneys at different times for his principal, he has a general lien on all the goods of the principal in his hands, and he need not part with them till he is fully paid. But the debt which has this binding operation on the goods of the principal must have been created in the course of the agency, and to this it will be strictly confined.12 In the same way bankers, insurance brokers, and attorneys at law have a lien on securities and papers which come into their hands respectively in the course of their business. 183

2520. Liens may also be divided into legal and equitable.

Legal liens are those which are recognized and may be enforced in a court of law.

Equitable liens are valid only in a court of equity. The lien which the vendor of real estate has on the estate sold for the purchase money remaining unpaid is a familiar example of an equitable lien.184

2521. To create a lien, whether it be acquired by the agreement of the parties either express or implied, or by act or operation of law, the following are essential requisites:

The party from whom it is acquired should have the absolute property or ownership in the thing which is the subject of the lien, or at least a right to vest it; for unless he has such right he can give no right to the creditor to hold it, the owner having the sole authority to bind or to refuse to bind his property for the payment of a debt due by another.

Thus, a factor cannot pledge his principal's goods for his own debts; 185 and even where the delivery by one not the owner may create a particular lien, it does not necessarily give a general lien for a balance due from the owner.

The party claiming the lien must have an actual or constructive possession, with the assent, express or implied, of the party against whom the claim is made, 186

The lien should arise upon the agreement, express or implied, and not for a specific purpose inconsistent with the express terms or the clear intent of the contract.187 Factors, for example, have a general lien for all claims arising from their agency upon all goods belonging to their principal in their possession which came to them as such. But should a horse, for example, be loaned by the principal to the agent for a particular purpose, the agent would have no lien upon it.188

2522. When a man acquires the possession of goods belonging to another by

182 Story, Ag. 376; Livermore, Ag. 38; Paley, Ag. by Lloyd, 140.

183 Ex parte Nesbitt, 2 Schoales & L. Ch. Ir. 279; Ex parte Sterling, 16 Ves. Ch. 209; Olive v. Smith, 5 Taunt. 56; Spring v. So. Car. Ins. Co., 8 Wheat. 268; Story, Ag. § 381; Paley, Ag. by Lloyd, 81, 131.

184 Mathews, Pres. 392. The extent to which a vendor's lien exists varies very much in the different states. In some of the states a practice exists of indorsing the receipt of the purchase money on the deed, and its absence is held to be notice to subsequent purchasers of the vendor's lien. Follett v. Reese, 20 Ohio, 546. See Taylor v. McKinney, 20 Cal. 618; Merritt v. Wells, 18 Ind. 171; Wickman v. Robinson, 14 Wisc. 493; Daughady v. Paine, 6 Minn. 443. The equitable mortgage made in England, by a deposit of the title deeds, can hardly exist under our system of registration.

185 Van Amringe v. Peabody, 1 Mas. C. C. 440.

156 3 Chitty, Comm. Law, 547; Paley, Ag. by Lloyd, 137; Jordan v. James, 5 Ohio, 88. 187 Most of the liens at common law exist by virtue of a usage so general as to be incorporated into all contracts of a certain kind. This is especially the case in bailments, and particularly in the case of innkeepers, warehousemen, common carriers, factors, and brokers, and pawnees. The lien which a ship owner has on the cargo for freight is a common law lien, which he has as a common carrier, and not a maritime lien. See the chapter on bail

finding, he has no lien on them for any expenses he has been put to in regard to them, except in one case; this is when goods are lost at sea.189 For the purpose of encouraging commerce and to reward a man who runs considerable personal risks in saving such goods, the law allows the finder a compensation, known by the name of salvage,190 and for this he has a lien. But when the finder of goods on land has been put to any expense 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 191

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.

192

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.

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. 193

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.194

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 cases 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.195

189 The finder of goods on land has a lien when the owner has offered a specific reward for the recovery. Wentworth v. Day, 3 Metc. Mass. 352.

190 Hartford v. Jones, 2 Salk. 654; 1 Ld. Raym. 393; Hamilton v. Davis, 5 Burr, 2732; Baring v. Day, 8 East, 57.

191 Nicholson v. Chapman, 3 H. Blackst. 354.

192 Lempriere v. Pasley, 2 Term, 485; Madden v. Kempster. 1 Campb. 12.

193 3 Chitty, Com. Law, 548.

194 Paley, Ag. by Lloyd, 132.

195 Kirkham v. Shallcross, 6 Term, 14.