effective declamation. Horace Walpole describes him as "a lord of good parts, only that they had rather more bias to extravagance than sense," and as a sworn enemy to the Chancellor (Hardwicke) on the score of some family jealousies.

Lord Talbot's younger brother, Edward, whom we have before passingly mentioned, a clergyman of great worth and talents, died in the year 1720, at the age of twenty-nine, being then Archdeacon of Berks, and having filled also the honourable appointment of preacher at the Rolls. He recommended to the patronage of his father, with his dying breath, three of his clerical friends, who all well justified the preference of his friendship, and every one of whom, although then unbeneficed, found that recommendation the first step towards a mitre Secker, afterwards primate; Benson, who became bishop of Gloucester, (both of them raised to the bench in 1734, doubtless through the good offices of the Chancellor); and Bishop Butler. His posthumous daughter and only child, Miss Catherine Talbot, acquired considerable celebrity in the literary world for her talents and accomplishments, and was one of the contributors to the Athenian Letters, and a frequent writer in the periodical publications of her time. His widow survived him for the remarkable period of sixty-three years, dying in the year 1784, at the great age of ninety-five.

We will conclude this short and necessarily very imperfect sketch by a few extracts from a well-expressed summary of the merits and character of Lord Talbot, which we find in a contemporary publication,' probably from the pen of Dr. Birch, to whom he was personally well known:

"It is a maxim generally received, and generally true, that difficult and unquiet times form those great characters in life which we view with admiration and esteem. But the noble lord to whose merit we endeavour to pay this acknowledgment obtained the honour and reverence of his country at a season when no foreign or domestic occurrence occasioned any remarkable event. Therefore, as facts cannot be related, from which the reader may himself collect a just idea of this amiable and almost unequalled man, words must faintly describe those extraordinary qualities which combined to complete his character; and though future generations may imagine those virtues heightened beyond their true proportion,

1 The "General Dictionary," (1739).

it is a suspicion not to be apprehended from the present age..... In apprehension he so far exceeded the common rank of men, that he saw by a kind of intuition the strength or imperfection of any argument; and so penetrating was his sagacity, that the most intricate and perplexing mazes of the law could never so involve and darken the truth as to conceal it from his discernment. As a member of each House of Parliament, no man ever had a higher deference paid to his abilities, or more confidence placed in his public spirit; and so excellent was his temper, and so candid his disposition in debate, that he never offended those whose arguments he opposed..... As no servile expedients raised him to power, his country knew he would use none to support him in it. When he could gain a short interval from business, the formalities of his station were thrown aside; his table was a scene where wisdom and science shone, enlivened with elegance and wit. There was joined the utmost freedom of dispute with the highest good-breeding, and the vivacity of mirth with the primitive simplicity of manners. When he

1

had leisure for exercise, he delighted in field sports; and even in those trifles showed that he was formed to excel in whatever he engaged in ;1 and had he indulged himself more in them, especially at a time when he found his health unequal to the excessive fatigues of his post, the nation might not yet have deplored a loss it could ill sustain. Though removed at a time of life when others but begin to shine, he might justly be said satis et ad vitam et ad gloriam vixisse; and his death united in one general concern a nation which scarce ever unanimously agreed in any other particular.' The maxim is assuredly no longer true, that

"Men's evil manners live in brass; their virtues

We write in water :"

the office of modern biography is more frequently to engrave the tablets of its heroes with such a crowd of excellencies, that no room remains for the exhibition of their frailties. Lord Talbot was even more fortunate; for his failings appear to have been almost as much forgotten during his life as his virtues were extolled over his tomb.

W.

1 This, it must be admitted, is rather a superlative manner of saying that a man was a good shot.

ART. III. THE DOCTRINE OF LIEN.

THE doctrine of lien is one of such extensive application to matters decided in Courts of justice, that it has necessarily entered into a great number of legal treatises. It has been particularly discussed in Mr. Powell's and Mr. Coote's works on mortgages, and in Lord Tenterden's work on shipping, and has formed the exclusive subject of two treatises, one by Mr. Whitaker, which appeared in 1812, and another by Mr. Montagu, published in 1821. Mr. Whitaker's work is confined to that kind of lien which gave rise to the general doctrine : to that kind which he defines to be "the right which one person in certain cases possesses of detaining property placed in his possession belonging to another, until some demand, which the former has, be satisfied." In the course of his work he shows how this lien may be acquired and how lost, when it is general, and when particular; and then gives instances of the classes of persons who may acquire it, and of the classes of subjects in which it may be acquired. This, however, is not the kind of lien which gives rise to the greatest number of difficulties, and to which we now request the attention of our readers. We wish to give a general view of that lien which one person has upon goods held by another, to refer to the general principles upon which it appears to have been founded, to explain when it is lost, and to support the view which we take of the subject by adding in some detail the principal cases in which the rules upon it have been determined.

The ancient species of lien of which Mr. Whitaker treats appear to be formed upon principles of equity rather than of law. A person sends his coat to be mended and brings trover to recover it. Strict legal principles would seem to require that the tailor should be compelled to surrender it, and should have his remedy for the labour which he has applied to it, by an action of assumpsit. But the Court of law allows him to retain the coat as a pledge for his repayment. It acts upon the same principles as a Court of equity, when that Court. requires a plaintiff to do equity to the defendant, before it compels the defendant to do equity to him: thus the Court of law

Whitaker on Lien, p. 2.

compels the owner of the coat to pay his debt to the tailor, before the tailor is compelled to return the coat. This is lien properly so called. "The word in its proper sense in the law of England," says Lord Tenterden, "imports that the party is in possession of the thing which he claims to detain. Where there is no possession, actual or constructive, there can be no lien." In this last sentence Lord Tenterden must have intended to give either a very extensive meaning to the word "constructive" or a very narrow meaning to the word "lien." Either he meant by "constructive possession," not merely a possession by a servant, but also a possession as it were by agreement, by the existence of some understanding that one person shall hold property in trust for another; or else he meant by "lien" that legal kind of lien, which is confined to the thing actually possessed by the person who claims it or by his servant.

To establish the lien of the more extended nature, two things must be proved: first, privity of person, secondly, privity of person in respect of the particular subject matter. Where either one or the other privity cannot be proved, there is no lien. If it is uncertain what is the subject matter of lien, as if the subject matter has been sold and the proceeds have been mixed with other property, or if it was not in esse at the time when the agreement was made or must be supposed to have been made, in any of these cases privity as to the subject matter will be wanting. On the other hand, if the person who has the subject matter in possession has in no way either directly or by implication rendered himself liable to the person who claims the lien, or has purchased the subject matter for a good consideration and without notice, there is no privity of person. When we come to examine the cases, we shall find that upon either of these suppositions there can be no lien, and that the difficulty throughout all the cases has been to determine the circumstances in which either or both of these two privities should be recognized or denied.

The ground upon which these two kinds of lien have been adopted is precisely the same, namely, to give confidence to individuals in their dealings with one another. The workman commences the work which he has been requested to do

! Abbott on Shipping, 5th ed. p. 171,

with a perfect assurance that he may retain it in his hands until he has been paid for his labour. Landowners dispose of their land, and merchants of their merchandize, in the confidence that, although in the hands of others, it will remain a pledge for the money which they have a right to claim; and thus in different ways the existence of a lien is an encouragement to enterprize and commercial intercourse.

Although the terms legal lien and equitable lien are frequently employed, we do not think that the distinctions between them can be very strictly defined, because in many instances a lien which appears to be founded upon principles altogether equitable has been enforced in Courts of law. For where A. parts with the possession of his goods, and B. receives them, and by receiving them is understood to put himself under a certain obligation to A., and is compelled to fulfil it in a Court of law; the Court seems to be entering into considerations which are altogether of an equitable character; the assumpsit is not expressed, and except upon a general consideration of all the circumstances cannot be implied. "There are to be sure," says Sir W. Grant, in 1Gladstone v. Birley, "liens which exist only in equity, and of which equity alone can take cognizance; but it cannot be contended that lien for freight is one of them. to liens on goods of one man in the possession of another, I know of no difference between the rules of decision in Courts of law and in Courts of equity. The question that so frequently occurs whether a tradesman has a lien on the goods in his hands for the general balance due to him, or only for so much as relates to the particular goods, is decided in both Courts in the same way and on the same grounds. To extend the lien, the party claiming it must show an agreement to that effect, or something from which an agreement may be inferred, or a general usage of the trade. Lien, in its proper sense, is a right which the law gives; but it is usual to speak of lien by contract, though that be more in the nature of an agreement for a pledge." It is precisely this lien by contract which is recognized both in Courts of law and also in Courts of equity. If the contract is express, there can be no reason why it should not be enforced like any other contract in a Court of law; but if it is implied it would seem according to the general

* 2 Mer. 403.