sent is invoked against the mortgagee and no questions of recordation appear, ordinarily takes precedence over subsequent claims. As a rule, the bailee's lien attaches to the goods in their incumbered condition at the time the bailment is created. The bailment of a mortgaged chattel gives rise to a lien on a mortgaged chattel, unless the mortgagee expressly or impliedly, yields his precedence.

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There are exceptional cases, however, when the lien of a prior mortgage must yield to the lien of the bailee. These are cases in which the mortgagor, in possession of the chattel, delivers it to the bailee for repairs that are necessary to preserve it and to keep up its efficiency as a means of enabling the mortgagor to pay off the mortgage debt. The bailment, in thus adding to the value of the mortgaged chattel, and increasing its earning power, is therefore manifestly to the advantage of the mortgagee. It is accordingly held that the necessities of the case authorize the mortgagor in possession to create such a bailment, rendering himself alone liable for the bailee's compensation in personam, but rendering the mortgaged chattel liable in rem. Thus, when a mortgaged canal boat foundered, the mortgagor took the boat to a shipwright for repairs, without which the boat could not have been used and would have been almost useless as security for the mortgage debt. It was held that the shipwright's lien on the boat was valid and took priority over the mortgage."9

the knowledge of the mortgagee, though the stable keeper had no notice in fact of the mortgage. McGhee v. Edwards, 87 Tenn. 506, 11 S. W. 316, 3 L. R. A. 654. See, also, Bissell v. Pearce, 28 N. Y. 252, in which the prior mortgage took precedence over the bailee's lien arising out of special contract. See, further, Denison v. Shuler, 47 Mich. 598, 11 N. W. 402, 41 Am. Rep. 734; Baumann v. Post, 16 Daly, 385, 12 N. Y. Supp. 213; Pickett v. McCord, 62 Mo. App. 467; Hanch v. Ripley, 127 Ind. 151, 26 N. E. 70, 11 L. R. A. 61.

68 The mortgagee's authority for the creation of a lien may be implied from the mortgagor's being allowed to remain in possession of the chattel and to use it for profit. Watts v. Sweeney, 127 Ind. 116, 26 N. E. 680, 22 Am. St. Rep. 615; Hammond v. Danielson, 126 Mass. 294; Loss v. Fry, 1 City Ct. R. (N. Y.) 7; Beall v. White, 94 U. S. 382, 24 L. Ed. 173; Scott v. Delahunt, 5 Lans. (N. Y.) 372; Id., 65 N. Y. 128.

69 Scott v. Delahunt, 65 N. Y. 128. In the leading case on this subject Williams v. Allsup, 10 C. B. N. S. (Eng.) 417, the shipwright's lien for repairs was permitted to take precedence over the lien of the prior mortgage. In that case Erle, C. J., used this language: "I put my decision on the ground that, the mortgagee having allowed the mortgagor to continue in the apparent ownership of the vessel, making it a source of profit, and a means of earning wherewithal to pay off the mortgage debt, the relation so created by implication entitles the mortgagor to do all that may be necessary to keep her in an efficient state for that purpose. The case states

Bailee's Lien is Usually a Special Lien, Not a General Lien

The bailee's lien for services about chattels is ordinarily a special lien, and not a general one. By a special lien is meant that it secures only the debt created by services about the specific goods upon which the lien is claimed. Such a lien does not cover debts for services on other goods besides those held under the lien. Such special lien, however, extends to every portion of the goods. delivered under one contract." The whole lien extends to each and every part of the goods subject to it. If not discharged or waived, it remains attached to any part of the goods remaining in the possession of the bailee. A delivery of part of the goods does not discharge the lien either wholly or even pro tanto. Such a delivery, unless it clearly appears that the intention of the parties was otherwise, releases from the operation of the lien only the part delivered. Accordingly, the goods remaining in the bailee's possession are charged with the burden of the whole lien.72

Where there is an entire contract for repairing several articles for a gross sum, even though these articles are delivered at different times, the artisan has a lien on each of the articles in his

that the vessel had been condemned as unseaworthy by the government surveyor, and so was in a condition to be utterly unable to earn freight, or be an available security or any source of profit at all. Under these circumstances, the mortgagor did that which was obviously for the advantage of all parties interested; he puts her into the hands of the defendant to be repaired; and, according to a¶l ordinary usage, the defendant ought to have a right of lien on the ship, so that those who are interested in the ship, and who will be benefited by the repairs, should not be allowed to take her out of his hands without paying for them." See, also, in that case, the opinions of Willes and Byles, JJ. See, also, opinion of Gray, C. J., in Hammond v. Danielson, 126 Mass. 294, applying the doctrine of Williams v. Allsup, to a hack.

70 Honig v. Knipe, 25 Mo. App. 574; Miller v. Marston, 35 Me. 153, 155, 56 Am. Dec. 694; Mathias v. Sellers, 86 Pa. 486, 27 Am. Rep. 723; Moulton v. Greene, 10 R. I. 330; Nevan v. Roup, 8 Iowa, 207; Rushforth v. Hadfield, 6 East (Eng.) 519; Green v. Farmer, 4 Burrows (Eng.) 2214. Charge for keeping goods held to preserve a lien cannot be added to the sum for which a lien is claimed. Somes v. British Empire Shipping Co., 8 H. L. Cas. (Eng.) 338; Lord v. Collins, 76 Me. 443. See, also, Harley v. Epps, 69 Ga. 611; McIntyre v. Carver, 2 Watts & S. (Pa.) 392, 37 Am. Dec. 519.

71 When the contract and the work are entire, the lien extends to each part, and may be enforced to the extent of the entire price upon any portion remaining in the possession of the bailee after a partial delivery. Schmidt v. Blood, 9 Wend. (N. Y.) 268, 24 Am. Dec. 143; Morgan v. Congdon, 4 N. Y. 552; Hensel v. Noble, 95 Pa. 345, 40 Am. Rep. 659; STEINMAN v. WILKINS, 7 Watts & S. (Pa.) 466, 42 Am. Dec. 254, Dobie Cas. Bailments and Carriers, 93; Myers v. Uptegrove, 3 How. Prac. N. S. (N. Y.) 316.

72 New Haven & Northampton Co. v. Campbell, 128 Mass. 104, 35 Am. Rep. 360.

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possession for such amount as he may be entitled for services bestowed on any or all of the articles embraced in the contract." Nor will a payment of part of the contract price release a part of the goods from the lien; but the bailee may retain all the goods until the entire debt is paid.

74

A general lien, as opposed to a special lien, is the right to hold goods as security for a general balance arising from a series of transactions either in the same line of business or of the same nature. Unlike the special lien, the general lien is not highly favored by the law." The lien of the bailee is therefore a special one, unless a general lien is given by special contract or by welldefined custom and common usage." Wharfingers and factors. are among the bailees to whom long-established usage has given such a general lien." This does not mean that the factor, for example, could retain goods of his principal for all debts due to him by the principal; but the factor's general lien gives him the right to hold the goods in his possession as factor only as security for the general balance due him from a series of contracts of factorage similar to the contract under which he secured possession of the goods to which his general lien attaches.78

78 Hensel v. Noble, 95 Pa. 345, 40 Am. Rep. 659; Blake v. Nicholson, 3 Maule & S. 167; Partridge v. Dartmouth College, 5 N. H. 286; McFarland v. Wheeler, 26 Wend. (N. Y.) 467; Lane v. Old Colony & F. R. R. Co., 14 Gray (Mass.) 143; Chase v. Westmore, 5 Maule & S. (Eng.) 180; Myers v. Uptegrove, 3 How. Prac. N. S. (N. Y.) 316; Moulton Greene, 10 R. I. 330; Ruggles v. Walker, 34 Vt. 468; STEINMAN v. WILKINS, 7 Watts & S. (Pa.) 466, 42 Am. Dec. 254, Dobie Cas. Bailments and Carriers, 93.

74 See Black, Law Dict. (2d Ed.) p. 726.

75 McKenzie v. Nevius, 22 Me. 150, 38 Am. Dec. 291; Brooks v. Bryce, 21 Wend. (N. Y.) 16.

76 Schouler, Bailm. (2d Ed.) § 122; 2 Kent, Comm. 634; Story, Ag. § 355; Jarvis v. Rogers, 15 Mass. 389. As to what constitutes a contract for a general lien on the part of a bailee, see Firth v. Hamill, 167 Pa. 382, 31 Atl. 676. The fact that plaintiff had not paid for suits which a tailor made for him did not give the tailor a lien upon other suits which plaintiff delivered to him to be pressed. Owcharoffsky v. Lambert (Sup.) 135 N. Y. Supp. 599.

77 It is also said that calico printers, fullers, packers, and also bankers and insurance brokers, have general liens by custom and usage. See 3 Wait, Act. & Def. 301; 4 Wait, Act. & Def. 319, 320; 7 Wait, Act. & Def. 215; Hanna v. Phelps, 7 Ind. 21, 63 Am. Dec. 410; Tucker v. Taylor, 53 Ind. 93; Mooney v. Musser, 45 Ind. 115; East v. Ferguson, 59 Ind. 169; Shaw v. Ferguson, 78 Ind. 547; Bunnell v. Davisson, 85 Ind. 557; Spears v. Hartly, 3 Esp. (Eng.) 81. And see Weldon v. Gould, 3 Esp. (Eng.) 268; Savill v. Barchard, 4 Esp. (Eng.) 53; Naylor v. Mangles, 1 Esp. (Eng.) 109; Rushforth v. Hadfield, 6 East (Eng.) 519; Id., 7 East (Eng.) 224; Moet v. Pickering, 8 Ch. Div. (Eng.) 372.

78 As to the limitations of general liens, see Story, Ag. § 379; Spring v. South Carolina Ins. Co., 8 Wheat. 268, 5 L. Ed. 614; McKenzie v. Nevius,

Waiver and Termination of the Lien

The bailee never has a lien when it is dispensed with by the special contract, and no lien arises when it is obvious that none was intended by the parties." This may result from a contract expressly stipulating that there should be no lien, or from a bailment contract clearly inconsistent with the existence of the lien; as, for example, where payment was to be made in medical services as they were needed by the bailee," or where a term of credit was provided for,81 thus postponing payment after the completion of the bailment.

Where a valid lien actually arises, the bailee may lose it by a waiver thereof, just as he may voluntarily relinquish his other rights. Such a waiver may be express, or it may be established by evidence showing any acts or conduct of the bailee incon

22 Me. 138, 38 Am. Dec. 291; Olive v. Smith, 5 Taunt. (Eng.) 57; Castling v. Aubert, 2 East (Eng.) 325.

79 WILES LAUNDRY CO. v. HAHLO, 105 N. Y. 234, 11 N. E. 500, 59 Am. Rep. 496, Dobie Cas. Bailments and Carriers, 95; Rollins v. Sidney B. Bowman Cycle Co., 96 App. Div. 365, 89 N. Y. Supp. 289; Stoddard Woolen Manufactory v. Huntley, 8 N. H. 441, 31 Am. Dec. 198; Trust v. Pirsson, 1 Hilt. (N. Y.) 292; Bailey v. Adams, 14 Wend. (N. Y.) 201; Murphy v. Lippe, 35 N. Y. Super. Ct. 542; Mount v. Williams, 11 Wend. (N. Y.) 77. Insolvency of bailor will not revive lien when it has been waived by special agreement. Fieldings v. Mills, 2 Bosw. (N. Y.) 489. Where credit may be claimed by custom, no lien arises. Raitt v. Mitchell, 4 Camp. (Eng.) 146; Crawshay v. Homfray, 4 Barn. & Ald. (Eng.) 50. If the inconsistent agreement is antecedent to the possession, no lien is created. If it is made afterwards, the lien is waived. 1 Jones, Liens, § 1002; Raitt v. Mitchell, 4 Camp. (Eng.) 146, 149; Crawshay v. Homfray, 4 Barn. & Ald. (Eng.) 50; Bailey v. Adams, 14 Wend. (N. Y.) 201; Dunham v. Pettee, 1 Daly (N. Y.) 112; Trust v. Pirsson, 1 Hilt. (N. Y.) 292; Chandler v. Belden, 18 Johns. (N. Y.) 157, 9 Am. Dec. 193; BURDICT v. MURRAY, 3 Vt. 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers, 84; Pinney v. Wells, 10 Conn. 104; Darlington v. Chamberlain, 20 Ill. App. 443; Lee v. Gould, 47 Pa. 398; Pulis v. Sanborn, 52 Pa. 368. But it must affirmatively appear that the lien is dispensed with. Where the contract is silent on the subject, the law confers a lien. Hazard v. Manning, 8 Hun (N. Y.) 613.

80 Morrill v. Merrill, 64 N. H. 71, 6 Atl. 602.

81 Hale v. Barrett, 26 Ill. 195, 79 Am. Dec. 367; Robinson v. Larrabee, 63 Me. 116; Tucker v. Taylor, 53 Ind. 93; McMaster v. Merrick, 41 Mich. 505, 2 N. W. 895; Dunham v. Pettee, 1 Daly (N. Y.) 112. "The operation of a lien is to place the property in pledge for the payment of the debt; and where the party agrees to give time for payment, or agrees to receive payment in a particular mode, inconsistent with the existence of such a pledge, it is evidence, if nothing appears to the contrary, that he did not intend to rely upon the pledge of the goods, in relation to which the debt arose, to secure the payment." Per Parker, J., in Stoddard Woolen Manufactory v. Huntley, 8 N. H. 441, 31 Am. Dec. 198. See, also, Fielding v. Mills, 2 Bosw. (N. Y.) 489.

sistent with the continuance of the lien. A lien is strictly personal, and continuous possession on the part of the bailee is essential to its continuance. Accordingly, when the bailee voluntarily parts with possession, his lien is waived. Nor, in such case, will it be revived by the bailee's subsequently reassuming the interrupted possession. Again, a wrongful pledge or sale of the

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chattel by the bailee 5 will destroy his lien.

86

Since the lien exists solely to secure the payment of the bailee's compensation, such payment, of course, terminates the lien, and a proper tender of payment would have the same effect. A re

87

82 Schouler, Bailm. (2d Ed.) § 123. Bailee forfeits his lien by receipting to stranger and acknowledging that he holds goods for him, or by refusing to deliver goods to his principal on other grounds, omitting to mention his lien. Holbrook v. Wight, 24 Wend. (N. Y.) 169, 35 Am. Dec. 607. See, also, Sensenbrenner v. Mathews, 48 Wis. 250, 3 N. W. 599, 33 Am. Rep. 809; Miller v. Marston, 35 Me. 153, 56 Am. Dec. 694; White v. Gainer, 2 Bing. (Eng.) 23; Brackett v. Pierson, 114 App. Div. 281, 99 N. Y. Supp. 770.

88 Burrow v. Fowler, 68 Ark. 178, 56 S. W. 1061; Block v. Dowd, 120 N. C. 402, 27 S. E. 129; Holderman v. Manier, 104 Ind. 118, 3 N. E. 811; Tucker v. Taylor, 53 Ind. 93; Nevan v. Roup, 8 Iowa, 207; McDougall v. Crapon, 95 N. C. 292; Kitteridge v. Freeman, 48 Vt. 62; In re Merrick, 91 Mich. 342, 51 N. W. 890; King v. Indian Orchard Canal Co., 11 Cush. (Mass.) 231; Stickney v. Allen, 10 Gray (Mass.) 352. Delivery of goods to third party, with agreement that lien continues, forfeits lien, unless third person is under control of bailee. Walther v. Wetmore, 1 E. D. Smith (N. Y.) 7. A tailor does not lose his lien by allowing the customer to try on the clothes made for him, provided it is done in the tailor's presence. Hughes v. Lenny, 5 Mees. & W. (Eng.) 183, 187. There is no common-law lien for work, done in manufacturing materials into clothing, unless the claimant has possession, actual or constructive, of the materials, and the lien is lost by the claimant voluntarily and unconditionally parting with such possession or control. Danzer v. Nathan, 145 App. Div. 448, 129 N. Y. Supp. 966.

84 Hartley v. Hitchcock, 1 Starkie (Eng.) 408; Howes v. Ball, 7 Barn. & C. (Eng.) 481; Nevan v. Roup, 8 Iowa, 207; Robinson v. Larrabee, 63 Me. 116; Hale v. Barrett, 26 Ill. 195, 79 Am. Dec. 367.

85 Rodgers v. Grothe, 58 Pa. 414; Davis v. Bigler, 62 Pa. 242, 1 Am. Rep. 303. The lien is also waived by claiming possession under an adverse title. Everett v. Saltus, 15 Wend. (N. Y.) 474; Holbrook v. Wight, 24 Wend. (N. Y.) 169, 35 Am. Dec. 607; Mexal v. Dearborn, 12 Gray (Mass.) 336. Lien acquired by partnership not lost by dissolution and assignment by one partner of his interest to the other. Busfield v. Wheeler, 14 Allen (Mass.) 139. See, also, Whitlock v. Heard, 13 Ala. 776, 48 Am. Dec. 73; Nash v. Mosher, 19 Wend. (N. Y.) 431; Samuel v. Morris, 6 Car. & P. (Eng.) 620.

86 Pine Bluff Iron Works v. Boling & Bro., 75 Ark. 469, 88 S. W. 306. This is obviously true of liens in general. See Stephens v. Moodie (Tex. Civ. App.) 30 S. W. 490; Moore v. Hitchcock, 4 Wend. (N. Y.) 292; Stansbury v. Patent Cloth Mfg. Co., 5 N. J. Law, 433.

87 Pine Bluff Iron Works v. Boling & Bro., 75 Ark. 469, 88 S. W. 306; Stephenson v. Lichtenstein, 72 N. J. Law, 113, 59 Atl. 1033. This is true of liens in general. See Eslow v. Mitchell, 26 Mich. 500; Mitchell v. Roberts