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1827. vered by the defendants to the bankrupt before his bankHOLDERNESS ruptcy. At the time of Foxton's bankruptcy, there were lying in the defendants' warehouse 9 tons, 4 cwt., 3 qrs. and 27 lbs. of flax, and 848 bags and 20 bundles of mats, the property of Foxton. The flax was the remainder of a larger parcel, of 17 tons, 5 cwt., 2 qrs., and 15 lbs., which had been landed at the defendants' wharf, placed for some time in their warehouse, and in part delivered to Foxton, previously to his bankruptcy. At the time of the bankruptcy, there was due to the defendants by Foxton, the sum of 727. 14s. 2d., which included not only the charges due to the defendants, for the wharfage, labourage (which comprises landing, weighing, and delivery), and rent, of the entire 17 tons, 5 cwt., 2 qrs., and 15 lbs. of flax, and the bags and mats, but also charges of the same nature due to them in respect of other goods, which had been delivered to Forton before his bankruptcy. After that event, and before the commencement of this action, the plaintiffs tendered to the defendants the sum of 41/. 10s. 3d., which included the entire amount of all charges due to the defendants for wharfage generally, and also all charges of every kind (including wharfage, labourage, and rent), up to the time of the tender, due to them in respect of the entire 17 tons, 5 cwt., 2 qrs., and 15 lbs. of flax, and the bags and mats, and demanded of the defendants the delivery of the flax, and bags, and mats, then in their possession. This the defendants refused, claiming a general lien on the goods for wharfage, labourage, and rent, while the plaintiffs insisted that their general lien extended to wharfage charges alone, and not to labourage, or rent. It was agreed by both parties, plaintiffs and defendants, that it should be taken as proved that in many instances where proprietors of goods have become insolvent, the wharfingers in Hull had claimed to have a lien on the goods in their possession for the amount of their running account with such insolvents, comprising therein charges for wharfage, labourage, and rent, not only of the goods

then in the wharfinger's possession, but of such as had been delivered before the owner's insolvency, and which claim had been acquiesced in and paid by the insolvents, or the persons legally representing them; but that in other instances such claim for general lien had been made, and not acquiesced in, and the same has long been, and continues to be, a disputed point: but that the instances of acquiescence in the claim greatly preponderate. And it was further agreed, that the Court might draw such inference from these facts as a jury might have drawn.

The question for the opinion of the Court is, whether, under the circumstances, the defendants have a general lien on the flax, and bags, and mats, now in their possession, for the amount of the charges denominated labourage and rent, due to them by Forton, at the time of his bankruptcy, or any part thereof. If the Court shall be of opinion that they have not such general lien, the verdict is to be entered for the plaintiffs, subject to the arrangement made between the parties. If the Court shall be of a contrary opinion, a nonsuit is to be entered.

F. Pollock, for the plaintiffs. The tender made by the assignees to the defendants, in respect of their claim upon the bankrupt, was sufficient in amount; for the defendants had no general lien upon the bankrupts' goods, beyond their charge for wharfage. The Courts have always taken a distinction between general and specific liens. When the real nature of that which is called a general lien is considered, the phrase will appear not to be a very correct one. A lien means a right to hold the goods of another, as a security for the payment of money due for labour and materials expended on those goods. A lien to that extent is a specific lien, a right founded in equity and reason, and as such has always been favoured by the Courts. But a lien going beyond that extent, that is a general lien, is more in the nature of a pledge, where one man pawns his goods to another as a security for all claims which that

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HOLDERNESS

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COLLINSON.

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HOLDERNESS

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COLLINSON.

other has upon him; which has always been regarded by
the Courts with jealousy, and has always been required to
be strictly proved. In Rushforth v. Hadfield (a), it seems
to have been admitted, that a lien claimed for a general
balance is not founded on the common law, but that such
a lien may arise by contract; and that usage of trade, if
general, uniform, and long established, is evidence of such
a contract. But it was decided there, that, as general
liens are not to be favoured, the party who sets up such a
claim ought to make out a very strong case; and that
evidence of a few recent instances of detainer of goods for
a general balance, is not sufficient to furnish an inference,
that the owner of the goods had knowledge of the usage,
and so to warrant the conclusion, that he contracted with
reference to it, and adopted the general lien into the par
ticular contract. Then, as the claim made by these de
fendants is not to be favoured, but is to be strictly proved,
and as usage (the only evidence in support of it) is only
evidence of an agreement; let this case be tried by that
test. The case finds that the claim of general lien has
long been, and continues to be, a disputed point in Hull;
that, in some instances, it has been acquiesced in, and in
others not; but that the instances of acquiescence greatly
preponderate. Now that is not sufficient evidence of usage,
even to be left to a jury, so as to raise the presumption
of the bankrupt having agreed to adopt the general lien
into his dealings with the defendants. There must be
either an actual personal acquiescence in the claim by the
party charged; or, such a general, uniform, established,
and notorious acquiescence in it by the trade, as fixes the
party with a knowledge of the usage, and with the adop→
tion of it into his own dealings. But there is neither of
those in the present case. Every person dealing with a
wharfinger has a right to make his own bargain with him :
and the practice, even of the majority of persons in the
same trade and neighbourhood, is not binding upon a par
(a) 6 East, 519. 7 East, 224. And see 2 Smith 634, 7. 3 Smith, 221,
S. C. Selw. N. P. 403, 1383, 7th Ed.

1827.

ticular individual. Here, the general lien for wharfage is not disputed; but labourage is part of wharfage, HOLDERNESS and then the charge for the one includes the other. But 2. COLLINSON. if that, like warehouse rent, is a distinct charge, a lien in respect of it cannot be supported, except by special agreement, or invariable usage; neither of which have been proved to exist in this case.

Parke, contrà. A wharfinger's general lien extends to all charges connected with his business as a wharfinger. The authorities in support of this position are very strong. In Naylor v. Mangles (a), it was contended, that a wharfinger had a lien for his general balance; and Lord Kenyon said, "the usage in the present case has been proved so often, that it must be considered as a settled point, that wharfingers have the lien contended for." In Spears v. Hartly (b), Lord Eldon, upon the authority of the preceding case, held, that a wharfinger had a lien for his general balance, and that, although the balance was of more than six years standing, the wharfinger might retain the goods by virtue of his general lien, for the debt was not discharged by the Statute of Limitations, but the remedy only. So in Richardson v. Goss (c), Lord Alvanley said, "the plaintiff tendered to the defendant the freight and charges on the goods in question, which the latter refused, contending, that by the custom of the trade, which is now become part of the contract between wharfingers and their customers, he was entitled to retain them for his general balance due from Wilson (the consignee of the goods). It is true, that as between the defendant and Wilson, if the former had received the goods on Wilson's account, and as belonging to him, the defendant would have had a right so to retain them." There is quite enough stated upon the face of this case to shew that a general usage has prevailed in Hull, for wharfingers to have some lien upon the goods in their hands. It is found, undoubt(c) 3 B. & P. 119.

(a) 1 Esp. 109.

(b) 3 Esp. 81.

1827. edly, that whether that lien should or should not extend HOLDERNESS to labourage and warehouse-rent, has been a disputed

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COLLINSON.

point; but it is also found, that the instances of acqui-
escence in the lien to that extent have greatly prepon-
derated, which shews that the claim of a lien to that
extent must have been universally made. Then, as the
claim has been universally made, and has in a great
majority of instances been acquiesced in, there is evidence
upon which a jury would have been warranted in finding,
that there was a general usage in favour of the lien claimed
by the defendants; and the case admits that the Court
may draw the same inference from the facts found in it,
as a jury might have drawn. It was held in Rushforth v.
Hadfield (a), that the lien of a common carrier, for his
general balance, might arise from an implied agreement,
to be inferred from the general usage of trade; and the
same rule applies to a wharfinger; for he is a species of
carrier, having similar duties to perform in landing,
weighing, and delivering the goods entrusted to his care;
and entitled therefore, to enjoy similar privileges. The
recent case of Rex v. Humphery (b), where a wharfinger
set up a lien against the crown, goes the whole length of
the present argument.
It was
there held, that "a
wharfinger's general lien on the goods of his customer in
his possession for his balance, in respect of freight and
wharfage, due before the teste of an immediate extent,
issued against such customer, being the crown's debtor,
should prevail against the extent." It was doubted

whether, a wharfinger's lien for warehouse-room stood
on the same footing;" but, "where a whafinger detained
goods on his premises, seized there under an immediate
extent, in respect of a lien for wharfage, which was after-
wards established; his claim for warehouse-room, from
the teste of the extent till the forcible removal of the
goods, was allowed." The claim for wharfage is admitted
in this case, and there is no reason why the claim for
(a) 6 East, 519.
(b) 1 M'Clel. & You. 173.