References: [1806] EngR 70, (1806) 7 East 224, (1806) 103 ER 86
Links: Commonlii
Ratio: A general lien is regarded in law as an exception, rather than the rule, because it advantages one creditor, otherwise unsecured, over the general body of unsecured creditors.
Where no lien exists at common law, it can arise by contract with the particular party, either express or implied: it may be implied either from previos dealings between the same parties upon the footing of such a lien, or even from a usage of the trade so general as that the jury must reasonably presume that the parties knew of and adopted it in their dealing. But where as in the case of a common carrier claiming a lien for his general balance, such a lien is against the policy of the common law and the custom of the realm, which only gives him a lien for the carriage price of the particular goods, there ought to be very trong evidence of a general usage for suh a lien to induce a jury to infer the knowlede and adoption of it by the particular parties in their contract ; and the jury having negatived such a general usage, though proved to have been frequently exercised by the defenants and various other common carriers throghout the north for 10 or years before, and in one instance so far back as 30 years, though not opposed by other evidence, the Court refused to grant a new trial.
This case cites:
- See Also – Rushforth And Another, Assignees of B And W Rushforth v Hadfield And Others (Commonlii, [1805] EngR 204, (1805) 6 East 519, (1805) 102 ER 1386)
The lien of a common carrier for his general balance, however it may arise in point of law from an implied agreement to be inferred from a general usage of trade, proved by clear and satisfactory instances sufficiently numerous and general to . .
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Last Update: 28-Sep-16
Ref: 340858
