a Care of chattel under lien.-A person holding chattel by virtue of a lien is under an obligation similar to that of a pawnee as regards its custody; he must use ordinary diligence (31); but he cannot require payment for the use of the place in which the chattel is detained, or otherwise for keeping it, even although he has given notice that such a payment will be demanded (32). The lien holder may without forfeiting his lien deliver the goods to his creditor to hold as security to the extent of the lien, and may appoint him to keep possession as the servant of the bailee (33), or may in equity assign the benefit of the lien, together with the debt in respect of which it is claimed. (34); but if he tortiously transfer the goods as his own the owner may maintain trover for them (35). Lien allowed. -A cellarer has a lien for his charges or rental upon the goods deposited with him (36); an accountant has a lien upon the books of account for work done thereon, if he holds possession of the books (37); and an arbitrator has a specific lien upon the award for his fees (38). And, generally, every bailee for hire who has, by his labour and skill, or by the use of any instrument over which he has control, imparted additional value to the chattel is entitled to a lien (39). (31) Angus v. McLachlan 23 Ch. D. 330. (34) Bull v. Faulkner 2 DeG. & S. 772. (37) Ex p. Southall 12 Jur. 576. (38) R. v. South Devon Ry. 15 Q.B. 1043; Re Coombs 4 Ex. 889. (39) Jackson v. Cummins 5 M. & W. 342. The salvor of property endangered by perils of the sea has a lien on it for the amount of a fair remuneration (40). A solicitor has a lien upon a document placed in his hands by a person entitled to dispose of it, for the price of work done thereon (41); and also a general lien in respect of professional charges, upon all documents or other property of the client which come to his hands in the character of solicitor while conducting the business or for the purposes of the client (42). The lien exists only in respect of property received in his capacity of solicitor and in the performance of his professional duty to the client (43); and does not extend to documents received by the solicitor as a land agent (44), or merely to keep for safe custody (45). At common law a person finding upon his land animals belonging to another, doing injury by treading down his growing crops or the like, is entitled to distrain them until satisfaction is made to him for his loss (46); a landlord also has a right to distrain upon his tenant's goods for rent in arrear. The exercise of the right of distress places the chattels distrained on in the custody of the distrainor, or of his bailiff, and the distrainor becomes a lien holder in respect of the goods seized. A trustee has a lien on the property in his hands subject to the trust for money properly expended (40) Hingston v. Wendt 1 Q. B. D. 367. (41) Hollis v. Claridge 4 Taunt. 807. (42) Ex p. Sterling 16 Ves. 258; Ex p. Nesbitt 2 Sch. & Lef. 279; Friswell v. King 15 Sim. 191. (43) Stevenson v. Blakelock 1 M. & S. 535. (44) Re Walker 68 Eng. L.T. 517. (45) Ex p. Fuller 16 Ch. D. 617. (46) 3 Black. Com. 7. thereon (47); but this is an equitable lien and is dependent upon a contract, express or implied, for the reimbursement of a trustee before calling upon him to deliver up the property. Lien denied. There is no lien in favor of the person who has obtained possession of chattels by fraud, misrepresentation or other wrongful act (48); nor where, by the nature of the contract between the owner of the chattel and the person claiming the lien, the chattel is received upon the terms that the owner is to have the control and right of possession, and use of the chattel at his pleasure, for such is inconsistent with the nature of a lien (49). A mere statement communicated to the consignees of goods that a bill of lading is drawn against those goods will not of itself give a charge upon them, and the words "which place to account cargo per the Α ." will not give a lien on that cargo (50). The right of a wife to pledge her husband's credit as a means of procuring necessaries for her support, when the husband fails to make proper provision for her, does not extend to validate a sale by her of her husband's chattels, nor to give her any lien thereon (51). An auctioneer has no lien on maps left with him to aid in the sale of land (52). (47) Darke v. Williamson 25 Beav. 622. (48) Madden v. Kempster 1 Camp. 12. (49) Chapman v. Allen Cro. Car. 271; Jackson v. Cummins 5 M. & W. 342. (50) Brown v. Kough (1885) L. R. 29 Ch.D. 845; Robey v. Ollier (1872) L.R. 7 Ch. 695; Phelps v. Comber (1885) L.R. 29 Ch. D. 813. (51) Kieley v. Morrison (1892) 24 N.S. R. 327; Edgerly v. Whalen 106 Mass. 307. (52) Blackburn v. Macdonald 6 U.C.C.P. 380. There is no lien as against goods the property of the Crown (53). A banker with whom a customer leaves for safekeeping a box containing securities, to which the customer has sole access, and keeps the key, has no lien for a general balance due from the customer (54). The Crown has no preferential lien upon the assets of an insolvent estate in the hands of the assignee for creditors in respect of customs duties on goods previously imported and sold by the insolvent, as a writ of extent for the Crown debt would only have effect on property owned by the debtor at the time of the issue of the writ (55). A sheriff has in Ontario no lien for his fees on goods seized under a writ of fieri facias (56). And in the absence of an agreement there is no lien in favor of a landlord, unless he is an innkeeper, upon chattels left on his premises by an outgoing tenant (57). Lien of finder of lost chattel.-The finder of a chattel has at common law no lien upon it for a recompense in respect of his trouble in securing it, and in taking care of it for the owner (58); but he is entitled to be paid his reasonable expenses incurred in respect of the thing found (59). And the owner of a boat which is found adrift on tidewater and is brought to shore is (53) The Queen v Fraser 2 R. & C. (Nova Scotia) 431. (54) Leese v. Martin L.R. 17 Eq. 234. (55) Clarkson v. Attorney General (1889) 16 Ont. App. 202. (56) Re Ross 3 Ont. Pr. 394. (57) Preston v. Neale 12 Gray (Mass.) 222. (58) Nicholson v. Chapman 2 H. Bl. 254. (59) Chase v. Corcoran 106 Mass. 286; Armory v. Flynn 10 Johns. (N.Y.) 102. liable for the necessary expenses of keeping and repairing the boat while it remained in the possession of the finder. The law implies in such a case a promise by the owner that upon taking it from the person who had found it adrift, he will pay for the necessary expenses of its preservation (60). If, however, the owner of a lost chattel offers a reward for its return, the finder has a lien upon the property for the payment of the reward. Such an offer is to be construed as meaning that the person who has expended his time and money in the pursuit and recovery of the lost or escaped property should remain in possession of the same as security for the payment of the proferred reward until its restoration to its owner, and that then the payment of the reward would be a simultaneous act; the lien is, therefore, one arising out of contract (61). But there is no lien implied by an offer so indefinite as of a 'liberal reward,' as it cannot be supposed that the owner, by his offer, intended that he was to be kept out of the possession of his property till the just amount in case of disagreement could be ascertained in legal proceedings (62). Where a part only of lost money is recovered, the finder will be entitled to a pro rata proportion of the reward, unless the offer be in terms which exclude any apportionment (63). A lien by the finder of a lost chattel for the reward (60) Chase v. Corcoran 106 Mass. 286. (61) Wilson v. Guyton 8 Gill (Md.) 213; Wentworth v. Day 3 Met. (Mass.) 352; Preston v. Neale 12 Gray (Mass.) 222; Wood v. Pear son 45 Mich. 313. (62) Wilson v. Guyton 8 Gill (Md.) 213; Shuey v. United States 92 U.S. 73. (63) Symmes v. Frazier 6 Mass. 344. |