Page images

the plaintiffs the goods in question by their packer, and they Green were delivered to the defendants, their dyers, to be dyed on "•

their (Messrs. Henzleman's) account. Afterwards, Messrs. ■ >

Henzleman and the plaintiffs agreed, that the plaintiffs should in the course of have their goods back again, who demanded them from the trade, but for the defendants, offering to pay what was due for the dying of Jy"- 'e them, but the defendants insisted upon being also paid a debt due from Messrs. Henzleman for dying other goods, over and above the price of dying these. The occasion of Messrs. Henzleman's agreeing that the plaintiffs should have their goods again, was their (the Henzlemans) having failed in their circumstances; and it was proved, that after notice of this failure the defendants had delivered back eleven pieces to Messrs. Aston and Hodgson, which had *in like manner been bought [ 652 ] of them by Messrs. Henzleman's packer, and sent to the defendants to be dyed on Messrs. Henzleman's account, without insisting on being paid more than was due for dying the same; and they had also delivered back to the plaintiffs five pieces in white, without being paid any thing for them. Qu. Whether, under these circumstances, the defendants have a lien upon these goods, for anything more than the price of dying the same?

This case was argued, at the bar, in Michaelmas and Hilary Terms; and for the plaintiffs were cited, Bro. tit. Distress, 92; Ex parte Deeze, 1 Atk. 228; Ex parte Ockenden, 1 Atk. 235: for the defendants, Prec. Chanc. 580; 1 Stra. 556.

And in this Term Lord Mansfield, C. J., delivered the .opinion of the Court.—This case is exactly the same as if the action had been brought by Henzleman, the plaintiff standing in his place. The general question is, how far the plaintiffs are bound to do justice to the defendants for a real debt due to them from Henzleman, before they can recover back these specific goods, or damages instead of them. The justice of allowing cross demands is supported by natural equity: the balance only is really due in such cases. But the common and established forms of law have, in general, directed separate remedies to be mutually had by different actions; and though, where the nature of the transaction consists in a variety of receipts and payments, the law allows the balance only to be the debt; yet, where mutual debts stand unconnected with each other, the law hath said, they shall not be set off. And Courts of equity have followed this rule, merely because it was the law. The natural reason of mankind was first shocked at this doctrine in the case of bankrupts; they thought it hard, * that a person should be bound to pay the whole that he owed [ 6S» J to the bankrupt, and receive only a dividend of what the bankrupt owed him(r). This therefore was provided for by the statutes 4 Ann.(u) and 5 Geo. 2(«c). Where there was no bankruptcy, the justice of setting off, (especially after death in

(») Oughterloay v. Easterly, 4 Taunt But see 6 G. 4, c. 16, s. 50. 888; Tamplin v. Diggint, 2 Camp. 312 («) C. 17. (w) C. 30, s. 28.

Greek the administration of assets) struck men next, and was there«• fore provided for by the statutes, 2 Geo. 2{x), and 8 Geo. 2(y),

Armer. Qf set.0ffs gut these statutes do not extend to create any lien on specific goods, unless where they can be construed to be deposited as a pledge. Natural equity is certainly much in favour of liens, so that courts of justice have always leaned that way as far as was consistent with positive law. They will therefore imply a contract of lien from the general course of trade, or from the nature of the particular mode of dealing between the parties. So where one has acted as a factor for another, every thing in his hands is construed to be a pledge. Two remarkable cases have been cited at the bar,—Ex parte Deeze, and Ex parte Ockenden; both of them well reported by Atkyns (z). In the former, Lord Hardwicke inclined to favour liens; but after mature deliberation he was of opinion in the latter, that he could not bring the goods detained within the general rule of liens. Both were bankrupt cases. I have notes of both. The one was the case of a packer, who Mxm allowed to retain cloth for other debts besides what was due for packing: The other of a miller, who was not allowed to retain corn for other debts than the price of the grinding. In this case, according to my own note, Lord Hardwicke said, "Here is no "evidence of a contract for a specific lien, nor of a lien arising "by the general course of the trade. The law has created a "specific lien for the price of grinding the corn; can I carry "it farther?" Atkyns reports only what was said on 12th August, 1754: It stood over to the 20th December; and no precedents being then produced to the contrary, he determined according to his opinion in August, as reported by Atkyns. If these two cases at all clash, the weight of authority is certainly more preponderant in the latter, which was more maj *654 ] *turely considered. But I think them very consistent. A packer, according to the course of trade, is certainly entitled to a lien upon all goods in his hands, being in the nature of a factor. Let me apply the principles of Ockenderis Case to the present. Here is no factor, no agent, concerned: No transaction but the mere manufacture of dying: No course of trade or general usage to create a specific lien: No particular circumstances of their method of dealing with Henzleman. The very manner of dealing shews, they relied merely on his personal credit. We are therefore all of opinion that the defendants had no lien in the present case, but for the price of the dying of these specific goods (a): and therefore,

Postea must be delivered to the plaintiffs; the price of the

dying being deducted at the trial out of the damages given

by the jury.

(j) C. 22, s. 13. a general balance; on which the learned

(j/) C. 24, s. 5. reporter observes in a note, that the same

(z) See the observations of Lord Almn- was said in argument in Whitehead v.

ley on these two cases, 3 Bos. & Pul. 497 j Vaughan, 25 G. 3, (1 Co. B. L. 566), but

and also Janet v. Smith. 2 Ves. J. 372-3. that he had not been able to meet with

(a) In 6 East, 523, A. D. 1805, it was any case in which it had been so ruled:

said in argument, that a dyer has a lien for he mentions the case of Clote v. Water

house, at York Assizes before Rooke,)., where the defendants, dyers at Halifax, claimed to retain for their general balance, on the ground of usage; but the jury negatived such usage and found for the plaintiff; and the Court of K. B. afterwards discharged a rule for a new trial. T. 42 O. 3. But at Nisi Prim, A. D. 1801, where the defendants, being dyers, gave evidence that it was the practice of the trade to be entitled to a lien for the general balance, Lord Kenyan observed that it was established in the case of bankers, packers, and wharfingers, that they were entitled to such lien; and that he was of opinion with Lord Mansfield, in Green v.

Farmer, that a lien was established by the
general course and practice of the particu-
lar trade. The jury under his direction
found for the defendants; Swill v. Barch-
ard, 4 Esp. N. P. 53. So the lien of a car-
rier for his general balance may be infer-
red from the evidence of the particular
mode of dealing between the parties; but
it is not to be favoured, neither can it be
supported by a few instances, it not being
founded in the common law; Rushforlh
v. Hadfield, 6 East, 519; Butler v. Wool-
cot, 2 N. R. 64, S. P. And see Ex parte
Smith, 6 Ves. Jun. 447; Fozcra/t v. De-
vonshire, ante, 193.



Perkins on demise of Vowe C. Sewell.

S. C. 4 Burr. 2223.

AN ejectment: The jury found a special verdict: "That one William Dexter, being tenant in fee of the premisses, enfeoffed Henry, Earl of Derby, afterwards K. Henry 4, to hold to him and his heirs. Afterwards the King by letters patent under the duchy seal of Lancaster, 2 April, 7 Hen. 4-, reciting said feoffment, and that Margaret, the wife of John Miton, was grand-daughter and heir of William Dexter; and that Miton and his wife had petitioned the King to be fully reinfeoffed thereof; nous veullantss cele partie soit fait, ceo que lot/, bone *foy, (f conscience demandant, have of our special grace given and granted to the said John Miton and Margaret his wife, and the heirs of the body of the said Margaret, the said premisses to be holden as of the King and his heirs, Dukes of Lancaster, as of the duchy of Lancaster in chief for ever; with reversion to the King and his heirs, Dukes of Lancaster, on failure of issue of said Margaret: Which grant was confirmed to Leonard Vowe, by letters patent under the Great Seal, 1st October, *20 Eliz.(6); and again 11th December, 27 Eliz. on a surrender of the former grant by Thomas Vowe, to be holden by the 20th part of a knight's fee and not in capite,


[merged small][ocr errors]

(4) These grants are more fully stated duchy seal, whereas it ought to have been

in Vowe v. Smith, cited in Legal's Ca., 10 under the Great Seal, which was no doubt

Rep. 110 b; and it appears there, 112 a, the reason of the confirmatory grant. MSS.

that tbe grant, by H. 4, was under the Serf. Hill.

[merged small][ocr errors]
[ocr errors][merged small][ocr errors][ocr errors][ocr errors][merged small][merged small][merged small][ocr errors][ocr errors]


Suffered a recovery, 1766.
Ob. 17th September, 1766.

Will dated 18th Aug. 1766.


[merged small][ocr errors]

On 30th March, 1652, Thomas Vowe, then heir of the body of Margaret Miton, on his marriage with Jane Dowley en[ *656 ] *feoffed John Fish and Thomas Collins; to the use of himself for life; remainder to said Jane for life; remainder to the heirs of the body of said Thomas Vowe on said Jane begotten; remainder to his own right heirs: and, in Easter Term, 1652, levied a fine to said uses. On 23d August, 1697, Leonard Vowe, the son and heir of the body of the said Thomas and Jane, on his marriage with Martha Butler, covenanted to levy a fine, which was afterwards levied; to his own use for life; remainder to trustees to preserve contingent remainders; remainder to said Martha for her life; remainder to the first and other sons of the marriage in tail male; remainder to trustees for a

term of 500 years to raise portions for daughters; remainder Perkins to the right heirs of Leonard Vowe. On 19th and 20th May, "■

1766, Thomas Vowe, son and heir of said Leonard and Martha'

Vowe, by lease and release made a tenant to the prcecipe, and declared the uses of a common recovery (which was accordingly suffered, Term Trin. 1766) to himself in fee. 18th August, 1766, Thomas Vowe made his will duly attested, reciting his father's settlement on him and his brothers in tail male, 23d August, 1697, which he had inadvertently barred by a recovery, and his intentions to restore the same: he therefore devises the premisses to trustees, to pay out of the rents and profits his debts, legacies, funeral expences, and certain other charges; and afterwards to his nephew Thomas Vowe and the heirs males of his body; remainder to his nieces, Martha Vowe, Mary Spragging, and Lucy Shuter, in tail general; remainder to the daughters of Thomas Vowe; remainder to his own right heirs. Thomas Vowe the testator deceased, 17th September, 1766; and Martha Vowe, Mary Spragging, and Lucy Shuter became thereby heirs of the bodies of the several grantees in the letters patent of King Henry 4 and Queen Elizabeth. The questions arising upon this special verdict were; 1st. Whether the entail created by the letters patent of Hen. 4, with reversion to the King in fee, was, under all its circumstances, such an estate tail as was protected from being * barred by a com- [ *657 ] mon recovery by virtue of the statute, 34 Hen. 8, c. 20? 2dly. Whether, supposing it so, in case the reversion had been to the King, in right of his Crown, it makes any difference, that this is to the King in right of his duchy of Lancaster. But the Court directed it to be argued only on the first question at present; for, if that was with the plaintiff, the second was quite unnecessary. It was accordingly argued in Hilary Term, by Hill, for the plaintiff, and Glyn, Serjeant, for the defendant; and in the present Term, by Eyre, Recorder of London, for the plaintiff, and Blackstone for the defendant.

For the plaintiff it was insisted,—1st. That no estate is intended to be protected by this statute, but such as has been given or provided by the King, in reward of some special services; because the preamble to the act speaks only of estates granted upon such considerations. 2dly. That the present grant appears upon the face of it to be merely a restitution of what belonged of right to the grantees; an act of justice, and not of bounty in the King; ceo que lot/, bone Joy, et conscience demandent; for which purpose it must be supposed, either,— 3dly. That a legal title subsisted in the grantees, paramount the title of King Henry IV, by means of some condition or defeazance annexed to William Dexter's feoffment of the Earl of Derby: or, 4thly. That Dexter and his heirs had an equitable right, and that King Henry IV, when Earl of Derby, was merely a feoffee to uses.

To this, it was answered for the defendant,—1. That if the words of an enacting clause are wider and more extensive than the preamble, the preamble shall not'narrow and confine them: [ *658 ]

« PreviousContinue »