THE AGENT'S LIEN. For the protection of his right to compensa tion, indemnity and reimbursement, the agent is given a lien by the common law.
A lien is the right of detaining the of an other until the claim, which is the basis of such right, is satisfied. (Ames v. Palmer, 42 Me. 197.) Such liens are either general or particular.
A general lien is the right to retain the property of another to cover and secure a general balance due from the owner to the person who has the property in his possession. (McIntyre v. Carver, 2 Watts & Serg. 392.) A particular lien, also called a specific lien, is the right to detain particular property for the charges in curred or services rendered in respect of such property. (Evans, Agency, 363; Mechem, Agency, 673.) Particular liens are favored by the law, but a general lien is not favorably regarded and can only exist by express contract, or where it has been judicially ac knowledged as incident to a particular trade or busi ness. (Mechem on Agency, Sec. 673.) A lien does not create or vest title in property; it is simply' a right of detention. It is purely personal to the lien holder, and is not subject of assignment or at tachment as his property. (Lovett v. Brown, 4o N. H. 511.) Being a mere right to retain property as security:, it follows that possession of the property is the founda tion of, and absolutely essential to the existence of a lien at common law. (McIntyre v. Carver, 2 Watts & Serg. 392; Miller v. Marston, 35 Me. 152.) This POS session must have been acquired in a leg-al manner, and not wrongfully or without the consent of the owne:-. (Randel v. Brown, 2 How. 4o6.) It must be continu ous, and if terminated, as by a voluntary surrender to the owner or others for him, it is lost. But a tem porary- surrender of possession without intention to re lease the lien, will not affect it; and this is so if the property- is taken from the lien holder by fraud and the like; in such case, if he regains possession, the lien re vives. (Bigelow v. Heaton, 6 Hill, N. Y. 248; Robin son v. Larrabee, 63 Me. 116.) The possession must also have been acquired in the course of the lien hold er's employment or by- virtue of his position, and the lien does not attach to property otherwise in his hands. (Dixon v. Stanfeld, ro C. B. 398; Scott v. Jester, 13 Ark. 438.) So the parties, may- expressly or implieffly agree that there shall be no lien, and if such is the coy tract the lien is waived. (Farrington v. Meek, 30 Mo. 578.) So the lien may be waived by conduct of the party entitled to it, inconsistent with its existence, as where he claims the goods on other grounds. (Hol brook v. Wight, 24 Wend. 169.) The possession of property under a lien does not au thorize the lien holder to sell it in the absence of statute permitting such sale. The lien being merely a right to retain can only be enforced by seizure and sale upon execution, as in other cases. But in case the lien re sults from a bailment or pledge, the property may be sold at public sale by such lienholder, and a factor may also sell goods to repay advances made upon them. (Mechem on Agency, Sec. 683; Parker v. Brancker, 22 Pick. 4o.) Generally speaking, an agent has a lien for his com mission, disbursements, and services, on such of the principal's property as is entrusted to him. (Muller v. Pondir, 55 N. Y. 325.) Some classes of agents, as bankers, factors and attorneys, may have a general lien, but usually the agent's lien is a particular lien, unless by usage, or special agreement, a general lien is ac knowledged. (Barry v. Boninger, 46 Md. 59.) The lien operates only for liquidated and certain claims, and not for future and speculative claims or damages. The claim must be owing the agent and be due from the owner of the goods held. (Story on Agency, Secs An additional security given an agent who makes himself personally liable for his principal's benefit, is the right to stop goods while they are in transit to the principal, upon learning that the latter has become in solvent. This is called the right of stoppage in tram: situ.
The right of stoppage in transitu does not exist if the shipment is to cover a balance due the principal by the agent, nor if the agent is a mere surety for the princi pal. (Ewell's Evans, Agency, Sec. 377.) And this right of stoppage in transitu must be exercised in the same manner, and may be lost by the same contingen cies, as in the case of a vendor. (Mechem, Agency, Sec. 687.)