Rushforth and Others, Assignees of Rushforth, against Hadfield and Others
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 1806 |
| Date | 08 February 1806 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 86
IN THE COURT OF KING'S BENCH.
[224] rushforth and others, Assignees, of Eushforth, against hadfield and others. Saturday, Feb. 8th, 1806. Where no lien exists at common law it ^£ijfe only arise by contract with the particular party, either express or implied : it may be implied either from previous 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 strong evidence of a general usage for such a lien to induce a jury to infer the knowledge 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 defendants and various other common carriers throughout the north for 10 or 12 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 was an action of trover to recover the value of a quantity of cloth which the bankrupts had sent by the defendants as common carriers, who claimed a lien upon it for their general balance due to them as such carriers for other goods before carried by them for the bankrupts. The plaintiffs had tendered the carriage price of the particular goods in dispute, and the sole question was, whether the defendants, as common carriers, had a lien for their general balance. On the first trial a verdict was found for the defendants, which this Court thought was not sustained by the evidence, and therefore they granted a new trial (), The cause was again tried at the last assizes at York, before Chambre J., when the defendants' book-keepers in London, at Stamford, and at Huddersfield, swore to their practice to retain goods for their general balance, and particularized one instance in December 1799, where an action was brought, which being referred, was decided on another point: a second in May 1800, where there was no bankruptcy: a third in May 1803, where the bankrupt's assignee demanded the goods, but afterwards paid the balance: a fourth and a fifth in the same year, when the individuals paid the balance,-but no bankruptcy intervened: and a sixth instance of the like sort as the last in 1804. In addition to these, [225] Welch, a carrier from Manchester and Leeds, deposed to an instance of retention of goods for the general balance three years back, where a bankruptcy intervened, and the assignees disputed the payment at first, but afterwards paid the balance; and to two other instances of goods...
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