54

to abandon it. The lien is also lost by entering into a relation or acting in a capacity which is inconsistent with its continuance."

56

The lien does not terminate upon the death of the principal, nor does it cease because the debt or obligation is barred by the statute of limitations."7

The lien is lost by a wrongful refusal to deliver, as where the agent refuses to deliver under claim of right not based upon his lien.58

How Enforced.

The lien ordinarily amounts to no more than a right of retainer. The agent may assert the right as a defense if his possession is attacked, and may reclaim the thing if he is unlawfully dispossessed, but he cannot sell or dispose of the thing to satisfy his claim." An exception exists in favor of a factor who has made advances upon goods consigned to him, a right to sell if upon notice his principal does not repay him being conferred. In some cases a court of equity will decree a sale."1

60

64 Angus v. Machlachan, 23 Ch. D. 330; Re Taylor [1891] 1 Ch. 590. See Jones, Liens, § 1011.

55 Re Nicholson, Ex parte Quinn, 53 L. J. Ch. 302 (solicitor acting for mortgagor and mortgagee loses lien on title deeds).

56 Hammond v. Barclay, 2 East, 227; Newhall v. Dunlap, 14 Me. 180, 31 Am. Dec. 45.

57 Spears v. Hartley, 3 Esp. 81; Re Broomhead, 16 L. J. Q. B. 355. 58 Jones, Liens, § 1018 et seq.

59 Story, Ag. § 371. But see Dewing v. Hutton, 40 W. Va. 521, 21 S. E. 780.

60 Ante, p. 403. Walker Co. v. Produce Co., 113 Iowa, 428, 85 N. W. 614, 53 L. R. A. 775.

61 Story, Ag. § 371; Whitman v. Horton, 46 N. Y. Super. Ct. 531; Id., 94 N. Y. 644 (factor).

LIEN OF SUBAGENT.

125. Where a subagent is appointed by authority of the principal, if he has notice that his immediate employer is not acting on his own behalf, he has, as against the principal, a particular lien, but his general lien is limited to the amount due from the principal to the agent; if he has not such notice, he has, as against the principal, the same right of lien that he would have against the agent were the agent acting on his own behalf.

Where a subagent is employed without the express or implied authority of the principal, the subagent must look to his immediate employer for remuneration, reimbursement, and indemnity,' and has no lien, general or particular, against the principal. Thus, if a factor, without the assent of his principal, delegates his authority to another, the latter has no lien, even for duties paid upon the goods. If, however, the employment of the subagent is authorized, he will be entitled to a lien, the nature and extent of which depends upon whether at the time of his appointment he knows or has reason to know that the agent employing him is not acting on his own behalf. If the subagent has notice that his immédiate employer is not so acting, he has, nevertheless, as against the principal, a particular lien; but he has, strictly speaking, no general lien. He may, however, if the agent has a lien, general or particular, avail himself of that lien by way of substitution. In other words, his general lien, as against the principal, is limited to the amount due from

125. 1 Ante, p. 462.

2 Solly v. Rathbone, 2 M. & S. 298.

See Bowstead, Dig. Ag. art. 173; Story, Ag. §§ 389, 390.

4 Fisher v. Smith, 4 App. Cas. 1; Lawrence v. Fletcher, 12 Ch. D. 858; Lincoln v. Battelle, 6 Wend. (N. Y.) 475; McKenzie v. Nevius, 22 Me. 138, 38 Am. Dec. 291.

5 Maanss v. Henderson, 1 East, 335; Snook v. Davidson, 2 Camp. 218; Lanyon v. Blanchard, 2 Camp. 597; Foster v. Hoyt, 2 Johns. Cas. (N. Y.) 327.

the principal to the agent. Thus, if an agent employs an insurance broker to effect a policy, although the broker is aware that the agent is acting for a principal, he has a particular lien for premiums paid by him or for which he is liable, and this notwithstanding that the principal settles with the agent; but, in the absence of a lien in favor of the agent to which he may be substituted, he has no lien as against the principal for a general balance due from the agent in other transactions. On the other hand, if the subagent has not notice that his immediate employer is not acting on his own behalf, he has the same right of lien, general or particular, as against the principal, that he would have had against the agent had the agent been acting on his own behalf." Thus, in the illustration above given, if the insurance broker were not aware that he was dealing with an agent, he would have, upon the policy, not only a particular lien, but a lien for any general balance due him as broker from the agent. Having reason to believe that his employer was the principal, he is entitled to hold the policy.10

RIGHT OF STOPPAGE IN TRANSITU.

126. Where an agent has bought goods for his principal with his own money or credit, he has, as against his principal, the same right of stoppage in transitu that he would have if he were an unpaid seller.

On account of its intrinsic justice, the courts are inclined to look with favor upon the right of stoppage in transitu, and to extend it to any one whose position is substantially that of an unpaid seller. Hence the right may be exercised by a consignor, factor, or other agent who has bought goods for

Man v. Shiffner, 2 East, 523; Ex parte Edwards, Re Johnson, 8 Q. B. D. 262.

7 Fisher v. Smith, 4 App. Cas. 1. 8 Cases cited note 5. Mann v. Forrester, 4 Camp. 60; Westwood v. Bell, 4 Camp. 349; Montagu v. Forwood [1893] 2 Q. B. 260.

10 Westwood v. Bell, 4 Camp. 349.

1

his principal with his own money or credit, if the other conditions exist which would entitle an unpaid seller to exercise the right. Where the agent is thus in the position of unpaid seller, he has ordinarily, indeed, before delivering the goods to the carrier for transmission to the principal, more than a mere agent's lien, or even seller's lien, retaining not merely possession of the goods, but the property in them.2 In such case it would seem that, although shipment of the goods (if without reservation of the right of disposal) would be an appropriation to the contract, he would, upon regaining possession by exercise of the right of stoppage, be entitled to hold them subject to a seller's lien with a right of resale. On the other hand, if upon shipment he reserved the right of disposal, by taking a bill of lading to his own order or otherwise, so that the appropriation was only conditional, he would, upon recovering the actual possession of the goods upon nonfulfillment of the condition to which the appropriation was subject, be restored to his rights of ownership. It may be observed that a principal consigning goods to his factor has the right of stoppage in transitu, although the factor may have made advances or has a joint interest with the consignor."

$126. 1 Feise v. Wray, 3 East, 93; Tucker v. Humphrey, 4 Bing. 516; The Tigress. B. & L. 38, 9 Jur. (N. S.) 361; Imperial Bank v. London & St. Katherine's Docks, 5 Ch. D. 195; Hawks v. Dunn, 1 Tyr. 413, 1 C. & J. 519; Falk v. Fletcher, 18 C. B. (N. S.) 403; Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; Seymour v. Newton, 105 Mass. 272, 275; Muller v. Pondir, 55 N. Y. 325, 14 Am. Rep. 259; Gossler v. Schepeler, 5 Daly (N. Y.) 476. See, also, Hollins v. Hubbard, 165 N. Y. 534, 59 N. E. 317.

Otherwise where an agent having a lien for advances ships at his principal's request to a buyer. Gwyn v. Railroad Co., 85 N. C. 429, 39 Am. Rep. 708. See Tiffany, Sales, 215.

2 Shepherd v. Harrison, L. R. 4 Q. B. 196, 493, 5 H. L. 116; Farmers' & Mechanics' Nat. Bank v. Logan, 74 N. Y. 568; Moors v. Kidder, 103 N. Y. 32, 12 N. E. 818.

8 Tiffany, Sales, 226.

4 Tiffany, Sales, 104.

Kinloch v. Craig, 3 T. R. 119; Newsom v. Thornton, 6 East, 17.

APPENDIX.

NEW YORK FACTORS' ACT.

LAWS 1830, c. 179.

An Act for the Amendment of the Law relative to Principals and Factors or Agents. [Passed April 16, 1830.]

§ 1. After this act shall take effect, every person in whose name any merchandize shall be shipped, shall be deemed the true owner thereof, so far as to entitle the consignee of such merchandize to a lien thereon.

1. For any money advanced, or negotiable security given, by such consignee, to or for the use of the person in whose name such shipment shall have been made; and,

2. For any money or negotiable security received by the person in whose name such shipment shall have been made, to or for the use of such consignee.

§ 2. The lien provided for in the preceding section, shall not exist where such consignee shall have notice, by the bill of lading or otherwise, at or before the advancing of any money or security by him, or at or before the receiving of such money or security by the person in whose name the shipment shall have been made, that such person is not the actual and bona fide owner thereof.

§ 3. Every factor or other agent, entrusted with the possession of any bill of lading, custom-house permit, or warehouse keeper's receipt for the delivery of any such merchandize, and every such factor or agent not having the documentary evidence of title, who shall be entrusted with the possession of any merchandize for the purpose of sale, or