Green v. Farmer [1768], 98 Eng. Rep. 154 (4. Burr. 2214)

Green and another versus Farmer and others

Friday 6th May 1768


This was a case reserved for the opinion of the Court, at a trial at Nisi Prius at Guildhall before Lord Mansfield, at the sittings after Trinity term 1767.

It was an action of trover for several parcels of serges and rackets. "Not guilty " was pleaded; issue joined; the cause tried; and a case stated.

It was argued first on Tuesday 17th November last, by Mr. Mansfield, for the plaintiffs; and Mr. Wallace, for the defendants; and the parties desired a second argument. In pursuance of which desire, it came on again [2215] on Tuesday 26th January last; when, upon some explanations of the facts, it being thought that they were not quite completely stated, the Court desired to be further informed of the course of these dealings, as it is a, question of general consequence. And the counsel agreed to amend the case; which they afterwards did.

The case, when amended, stated the following facts.It appeared in evidence that155 Messieurs Heinzleman purchased from the plaintiffs the goods in question, by the intervention of their packer: and they were delivered to the defendants, their dyers, I to be dyed upon their account, on 12th July 1766. That, afterwards, Messieurs Heinzleman and the plaintiffs agreed "that the plaintiffs should have their goods back again:" who demanded them from the defendants, offering to pay what was due for the dying. But the defendants insisted upon being paid a debt due from Messieurs Heinzleman for dying other goods, over and above what they owed for the dying of these goods. That the occasion of Messieurs Heinzleman's agreeing "that the plaintiffs should have their goods again," was their having failed in their circum stances. And it was proved "that after notice of this failure, the defendants delivered eleven pieces to Messieurs Aston and Hodgson, which had been bought of them by the packer of Messieurs Heinzleman, on their account, and sent in like manner, to the defendants to be dyed on their account; without insisting upon being paid more than what was due for dying these eleven pieces; " and "that they also delivered to the plaintiffs five pieces in white, without being paid any thing."

It was further stated, that the goods, for the charge of dying whereof the defendants claim to retain the goods now in question, had been sent into them, dyed, and returned, at the several times specified in their account. And it appeared from that account, that all the goods, for the dying whereof the defendants now insist upon being paid before they will part with this last parcel of serges and rackers, were returned without retaining or having any other goods; and that the demand for dying those former goods arose from the 1st of January 1766 to the 10th of June 1766, and before the 12th of July 1766. It appeared also, that there were several periods, during which the defendants had no goods in their hands.

A verdict was found for the plaintiffs, for 571. and 40s. costs; subject to the opinion of this Court upon the fol-[2216]-lowing question-

"Whether, under the circumstances of this case, the defendants have a lien upon these goods, for more than the price of the dying." [The same goods.]

On Tuesday last, (the 3d instant), this amended case, was argued by Mr. Dunning, Solicitor-General, for the plaintiffs; and Mr. Eyre, Recorder of London, for the defendants.

Mr. Solicitor-General argued that the defendants had no such lien, nor any right to retain these goods, for more than the price of dying them.

The right to retain depends upon a contract, either express or implied.

A taylor loses his right to retain, if he stipulates for a particular price. 2 Ro. Abr. p. 92, title "Justification," pl. 1, & 2.

So, an innkeeper, if he delivers the horse. If it be brought to him again, he can't retain him for the first debt.

10 August 1754, Ex parte Shank et Al', before Lord Hardwicke-it was held that a ship-builder had no specific lien upon a ship for repairs, if he parts with the E possession. 1 Atkyns, p. 234.

So, the present right to retain ended with the return of the goods.

This brings the question,to the nature of the contract between these parties.

Here is certainly no express contract, to vary the right: nor is there any implied one.

All former accounts were settled to the beginning of the year 1766. These dyers were employed by the merchant to dye his goods: and there were no other dealings between them. From the 3d to the 10th of January, they had no goods of Messieurs Heinzleman's in their hands: and that was the case at several other times: particularly, from the 10th of June to 12tb of July. Therefore they did not trust to this retain ing: they trusted to Heinzleman's personal security. Therefore they had no right to retain for more than the charge of dying these particular goods.

[2217] As to the statutes about set-offs, which were mentioned upon the former argument-the fair argument from those statutes, is " that it was thought improper by the Legislature, to carry the provision further than they have carried it." And it skews too, what the law was, before those Acts.

As to the supposed inconvenience to trade, and the supposed analogy to the case of a factor-it is no inconvenience to trade; and is not at all like the case of a factor. The factor is constantly receiving and paying; but the dyer may never receive any more goods, to dye.

The whole of this demand was completed on 10th of June. The dyer had no 156reason to look forwards to the merchant's sending future goods to be dyed. There is just as much reason to retain the goods to answer any other debt, &c.

He cited a case Ex parte Ockenden, a Miller; In the Matter of Matthews, a Bankrupt. 1 Atkyns, 235.-Matthews was indebted to Ockenden in £286, 7s. l0d. for grinding of corn; and became bankrupt. He had given the miller two promissory notes of £100 each, which became due before the bankruptcy. At the same time, the miller had in his custody a quantity of wheat, to grind; and a great number of sacks. No more was due to him for grinding the corn then in his hands than £16, 5s. Lord Hardwicke held "that the miller clad no specific lien upon the corn and sacks, but l only pro tanto as was due for grinding the corn then in his hands."

In the case of Demainbray and Metcalfe,1 the pawnee had the jewels always in his possession, as a security for the sums borrowed. But here, what security had the defendants from 10th June to 12th July; when they had no goods of the Heinzlemans I in their hands 1 this was a subsequent transaction.

In the case of Downam versus Matthews,2 there had been mutual dealings for several years, without payment of any money, on either side: which the Lord Chancellor said was a strong presumptive argument of an agreement for that purpose.

In the petition Ex parte Deeze,3 there was evidence, that it was usual for packers to lend money to clothiers; and the cloths to be a pledge, nut only for the work done in packing, but for the loan of money likewise.4

Here the defendants rested upon the personal security of Messieurs Heinzleman.

[2218] Mr. Eyre, Recorder of London argued for the defendants, in support of their right to retain.

He owned, it was hard to maintain the old cases about liens; and that it was not easy to apply them to mercantile transactions.

But the right of retainer has been considered (be said) with more liberality of late years; it is now put upon the foot of mere justice.

At present, a man may have the benefit of it in trover.

The case mentioned in that of Chapman versus Darby, 2 Vern. 117, "that where there were mutual dealings on account between a bankrupt and another, the other should only answer to the bankrupt's estate the balance of the account," was before the Act of Parliament. It was the first extention of the common law, by way of liberality. Lord Cowper had come into it sooner; considering it upon the foot of an account current. The Courts of Common Law did not come into it so soon.

In a case at Nisi Prius at Guildhall, it was ruled "that the defendant could not justify keeping the goods, till be was repaid the duty." It was an action of trover, M. 12 G. 1, before Lord Chief Justice Eyre. The plaintiff was captain of a ship; and brought over some elephants teeth, both for his owner and for himself. The owner paid the duty for the whole; and received the whole. The duty was deducted in damages; but be could not detain the goods for it. 1 Stra. 651, Stone versus Lingwood.

Lord Mansfield.-Most clearly, 'tis not law.

Mr. Eyre proceeded.-An attorney may now retain papers, not only till be is paid the particular debt, but for his general balance.

The difficulty is how to set it off in trover.

Lord Mansfield.-If it can be set off in a Court of Equity, it may be set off in an action of trover; because it is a lien. It was certainly doubtful, before the case of Krutzer and Wilcocks, "whether a factor had a lien, and could retain for the balance of his general account."

[2219] Mr. Justice Yates.- Wherever the plaintiff has a lien, he may retain in trover, as well as in any other action, or in a Court of Equity.

Mr. Eyre.-It is as reasonable to retain, in the present case, as in the case of a factor. A factor must often be without goods in his hands, as well as the defendants157 were here. There is no reason to confine it to the case of a factor: it extends equally to every agent; and consequently to a packer, or a dyer; and with equal reason. For, the goods are to be considered as a pledge, from the nature of the dealing.

He cited the case of Foxcroft and Others, Assignees of Scatterthwaite, against Devonshire and Others, Hil. 33 G. 2, B. R. And after repeating Lord Mansfield's reasoning in that case, (which see ante, p. 936, 937,) be applied it to the present case.

Every article of this debt arose, he said, under the security of a specific lien.

The goods came into the defendants bands, in the course of trade and dealing; and a lien upon them is implied in the nature of the transaction. And this tends to the advancement of credit, and the benefit of commerce.

As to the case that has been cited, of 10th August 1754, Ex parte Shank et Al‘5 - there the shipwright bad departed with his lien.

I do not put it upon the principle of the old cases; but upon the principles which have obtained since the ease of Krutzer versus Wilcocks.6

And upon these principles, the defendant is intitled to the postea; as having a lien for more than the price of dying.

Mr. Solicitor-General, in reply.-The Legislature have only taken care of particular cases; they have left this case as they found it.

The defendants never had a lien upon these goods, for all the several parts of their demand. They had a lien for part of it, upon other goods; which lien they have parted with.

As to the old cases-it don't rest upon them alone; I mentioned a modern one in 1754.

[2220] As to the case mentioned in that of Chapman versus Dormer,7 that was upon a bankruptcy; where one party would otherwise pay the whole of what is due from him, and receive only a part of what is due to him.

The case of the jewels is very strong. And the Court of Chancery will not suffer a mortgagee to redeem till he has paid all that is due.

Ockenden's case and Deeze's are reconcileable. But if they are not, the latter opinion must be the authority.

The case of Krutzer versus Wilcocks differs from this case; because that was the case of a factor; who is not in the same case with a dyer, who does not proceed upon the same ideas of future employment. The latter can have a right to retain, only whilst they keep possession. In that case, the factor remained in possession of the goods; here, the dyers parted with the goods upon which they bad a lien for the former demand.

As these goods were sent to the dyer for a particular purpose, he ought not to retain them for a general purpose. The particular purpose being served, the right to the goods results to the owner.

It was ordered to stand over to this day, Friday 6th May, for the opinion of the Court.

Lord Mansfield now delivered the opinion of the Court.

The case is the same, as if the action bad been brought by Messieurs Heinzleman; for, the plaintiffs stand in their place. And so, I shall consider it.

The general question is-"whether the plaintiffs in this action should be obliged to do justice to the defendants, by paying what is due to them; before they are intitled to demand the goods from them, and to recover their value, in case of refusal."

Natural equity says, that cross demands should compensate each other, by deducting the less sum from the greater; and that the difference is the only sum which can be justly due

But, positive law, for the sake of the forms of proceeding and convenience of trial, has said that each must sue and recover separately, in separate actions.

It may give light to this case and the authorities cited, [2221] if I trace the law relative to the doing complete justice in the same suit, or turning the defendant round to another suit, which, under various circumstances, may be of no avail.

Where the nature of the employment, transaction, or dealings, necessarily constitutes an account consisting of receipts and payments, debts and credits; it is certain that only the balance can be the debt; and by the proper forms of proceeding in Courts of Law or Equity, the balance only can be recovered.

After a judgment, or decree " to account," both parties are equally actors.


Where there were mutual debts unconnected,8 the law said they should not be set off; but each must sue.9 And Courts of Equity followed the same rule, because it was the law; for, had they done otherwise, they would have stopped the course of law, in all cases where there was a mutual demand.

The natural sense of mankind was first shocked at this, in the case of bankrupts and it was provided for by 4 Ann. c. 17, § 11, and 5 G. 2, c. 30, § 28.10 This clause must have, every where, the same construction and effect; whether the question arises upon a summary petition, or a formal bill, or an action at law. There can be but one right construction; and therefore if Courts differ, one must be wrong.

Where there was no bankruptcy, the injustice of not setting off, (especially after the death of either party,) was so glaring that Parliament interposed by 2 G. 2, c. 22,11 and 8 G. 2, c. 24, § 5. But the provision does not go to goods or other specific things wrongfully detained; and therefore neither Courts of Law nor Equity can make the plaintiff who sues for such goods, pay first what is due to the defendant; except so far as the goods can be construed a pledge; and then, the right of the plaintiff is only to redeem.

The convenience of commerce, and natural justice are on the side of liens; and therefore, of late years, Courts lean that way -1st. Where there is an express contract; 2dly. Where it is implied from the usage of trade; or (3dly.) From the manner of dealing between the parties in the particular case; (4thly.) Or where the defendant has acted as a factor.

The case Ex parte Ockenden was well considered. Lord Hardwicke's bias was strong on behalf of liens; and his own determination in the case Ex parte Deeze had been [2222] almost in point. Yet be took time to consider it and search for precedents. And after consideration, he thought he could not construe it within the mutual-credit clause of the Bankrupt-Act; unless it could be so construed in an action of trover. (And that is certainly so.) He rested upon there being no room, in that case, to imply a lien, from usage of trade, or from the particular manner of dealing.

This case, and that Ex parte Deeze, are well reported in the printed books; but I will read you my note of both.

(Accordingly, be read his own note of the case.);

This was to August 1754; and it stood over; and on 20th December 1754, no precedents being found, he determined accordingly.

And no precedents are cited since the 20th December 1754.

Then his Lordship read his own note Ex parte Deeze, on the bankruptcy of Norton Nicholls-" That the assignees could not take the goods from the petitioner, without making satisfaction for the whole of his debt. As to a lien in that case, from the nature and course of dealing, the evidence is not clear." The opinion was "that the petitioner should be paid his debt, before the goods were taken out of his hands."

Though Lord Hardwicke took notice of the evidence of usage, he said, it was not very clear. He thought it hard that mutual credit should only relate to pecuniary demands; though goods can only be paid for in money; and in that case, there was an account between the parties; wine on one side, and package on the other.

I have inquired into the case Ex parte Deeze, and the affidavit of the book-keeper,12159(which he particularly stated). If the usage there stated be true, the packer was in the nature of a factor; and, as such, had a lien for the general balance. It was settled, in 1755, "that a packer, being in the nature of a factor, would be entitled to a lien."

Apply this to the case Ex parte Ockenden, and to the present case. In this case, the defendant acts in no respect as a factor; but merely as a manufacturer, to dye. There is no express contract "to pledge;" no usage of trade; no argument from their particular dealing; on the contrary, it appears that be trusted to Messieurs Heinzleman's personal credit only. The defendants never de-[2223]-tained any goods to answer their debt; but, from the 1st of January to 10th of June, gave all back; for; the dying of which, they now claim to detain; without having any new cloths sent in. After notice of the failure of Heinzleman, they delivered eleven pieces to Aston and Hodgson, without a claim.

It is sufficient, that no contract can be implied, to give a lien for the balance, from any usage of trade or manner of dealing: but it is much stronger, when the manner of dealing shews the contrary, and that the defendants relied on personal credit only.

Therefore we are all of opinion " that there is no lien here, beyond that which is given by the general rule of law: which never was disputed."13

Postea to be delivered to the plaintiff.

N.B. The price of dying was deducted at the time of taking the verdict; the value of the goods in white14 being only thereby given to the plaintiffs.

1Precedents in Chancery, 419. 2 Vern. 691, 698. Reports in Equity, 104, and Abridgment of Equity Cases, p. 324, pl. 4.
2Precedents in Chancery, 580. Vide 1 Atkyns, 236, S. C. cited by Lord Hardwicke.
31 Atkyns, 228.
4Vide 1 Atkyns, 237, S. C. cited by Lord Hardwicke.
51 Atkyns, 234.
61st Feb. 1755. Vide ante, vol. 1.
7[* Qu. Derby.]
8[Ambler, 408, Maximus in Eq. 1, 2 Bl. Rep. 1312, and qu. 1 Atk. 237 .a.]
9This was not so in the case of bankrupts; for long before the statutes cited in the next paragraph, mutual debts might have been set against each other, 1 Mod. 215, per North, C.J. Tr. 28, case 2, and in 2 Vern. 117, cited by Mr. Eyre, ant. 2218; it appears that Ld. Hale had so adjudged; and it is clear that in general, in Courts of Equity, mutual debts might have been set off against each other, before any statute for that purpose.
10Directing mutual demands to be balanced.
11Sect. 13, for setting of mutual debts against each other. See 6 Durn. 695.
12Qu. This affidavit and qu. in what the similitude between a factor and packer consists? for it is observable, that it appears by the report in the cause Ex parts Ockenden, what the affidavit in that Ex parts Deeze, must have been, for Lord Hardwieke is there reported to have said that in the petition Ex paste Deeze before him there was evidence that it is usual for packers to lend money to clothiers, and the clothe to. be a pledge not only for the work done in packing, but for the loan of money likewise, and it is so here, ant. 2217.
13That is a lien only for dying the same goods for the conversion of which the action was brought.
14That is undyed.

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