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away goods sold. Whitmarsh v. Walker, 1 Metcalf (Mass.), 316; Parsom v.
Camp, 11 Connecticut, 525 ; While v. Eltvell, 48 Maine, 360; Westcott w De-
lano, 20 Wisconsin, 510 ; Toion v. Hazen, 51 New Hampshire, 596.

The foregoing summary fully justifies Mr. Freenuui's statement (note, 31
Am. St. Rep. 712), that " the authorities upon this branch of the law have
ever been, and still remain, so conflicting as to make their reconciliation
totally impossible upon any conceivable theory."

Mr. Goddard (P2asements, p. 472) is of opinion that a license is revocable
in any event (citing Wood v. Leadbitler).

See discussion. Sterling v. Warden, 51 New Hampshire, 217 ; 12 Am. Rep.
80, citing Wood v. Leadhitter.

That a license must be executed within a reasonable time, although given
for "any and all times,'' is held in Hill v. Hill, 113 Massachusetts, 103; 18
Am. Rep. 454.


See " Agistment," 2 R. C. 547 ; " Attachment," 3 R. C. 5.58, 567 j " Banker,"
3 R. C. 587 ; "Carrier," 5 R. C. 281 ; " Dead Freight," 8 R. C. 479 ; "Equitable
Assignment," 10 R. C. 467 ; "Innkeeper," 13 R. C. 136. As to Shipowner's lien, see
" Ship," post; as to Solicitor's lien, see " Solicitor," post ; aud " Deed," 8 R. C. 728.

No. 1. — In re LEITH'S ESTATE.

(p. 0. 1866.)


The right of lien is given by implication of law, not by
express contract ; an express contract for a charge or
security excludes lien, and limits the rights of the parties
to the extent of the express contract.

V L. XVI. — 6

82 LIEN.

No. 1. — In re Leith's Estate; Chambers v. Davidson, L. R. 1 P. C. 296, 297.

In re Leith's Estate.^
Chambers v. Davidson.

L. R. 1 P. C. 296-308 (s. c. 36 L. J. P. C. 17 ; 15 W. R. 34).

[296] West Indian Estates. — Consignee and Mortgagee. — General Lien,

Extent of.

The right of a consignee of a West Indian estate gives him a lien on the
plantation in respect of the balance due to him, and is an exception to the
general rule which applies to principal and agent. Such general lien, being
given by implication of law, is excluded, where the security of the consignee is
created by express contract.

Therefore, if a consignee takes an express security, such security being the
stipulation and agreement of the parties, it excludes his general lien. So held
by the Judicial Committee, where the party claiming a general lien as consignee
was also a mortgagee of certain estates, and had, by deed, stipulated for the
consignment of their produce, as well as that of other plantations, subject to the
rights and interests of existing mortgages then subsisting thereon.

In this case the appeal was brought from an order of the Com-
missioners for Sale of Incumbered Estates in the West Indies, dis-
allowing the claim of the appellant to priority under a
[* 297] * consignment deed. The ground of the decision was, that
the consignment deed was, by its terms, subject to prior
mortgages to the respondents.

The circumstances were these : —

On the 27th of January, 1856, John Leith; since deceased, and
James Leith, both of the Island of Tobago, planters, were in-
debted to the respondents as executors and trustees of their late
father, Duncan Davidson, in the sum of £10,000.

By indentures of mortgage, dated the 26th and 27th of January,
1856, the Leiths mortgaged to the respondents certain estates in
the Island of Tobago, called New Grange, Old Grange, and
Grafton, and an estate called Kendal Place, and other estates in
the same Island, together with the live and dead stock then and
thereafter to be upon the same, to secure the £10,000 and interest.
By the same mortgage deed the £10,000 was covenanted to be
paid by instalments, and the Leiths covenanted to ship and con-
sign to the respondents fifty hogsheads of sugar on or before the
15 th of July in every year.

1 Present: Lord Westburv, Sir .Tames William Colvile, and Sir Edwaku
Vaughan Williams.

It. C. VOL. XVI.] LIEN. 83

No. 1. — In re Leith's Estate ; Chambers v. Davidson, L. R. 1 P. C. 297, 298.

James Leith v^^as himself seised of other estates in the Island of
Tobago, called Charlotte-Ville, Telescope, and Fairfield; and by
an indenture of mortgage, dated the 23rd of January, 1860, he
mortgaged these estates to the appellant in fee, to secure the
amount of his then debt and future advances, not together to
exceed the sum of £2500.

By another indenture of mortgage, dated the 23rd of January,
1860, the Leiths mortgaged a town lot in Scarborough, in Tobago,
in fee, to secure the appellant's debt and further advances, not in
the whole to exceed £800.

James Leith was also seised of other estates in Tobago, called
Speyside and Eunnymede ; and by an indenture, or covenant for
consignment of produce, dated the 15th of March, 1860, made
between the Leiths of the one part, and the appellant of the other
part, after reciting the two last-mentioned mortgages, and the
seisin of the Leiths of New Grange, Old Grange, and Kendal
Place, subject to certain mortgages or charges aflecting the same,
or some of them, and also an agreement for consignment of two-
thirds of all the produce from the estates, so long only as posses-
sion should not be adversely taken by the parties hold-
ing the * respective mortgages or charges aforesaid ; and [* 298]
reciting that two accounts were intended to be kept by
the appellant, one with James Leith alone, and the other with
both the Leiths ; and reciting that the first-mentioned indenture
of mortgage of the 23rd of January, 1860, should be a security for
both accounts current, not exceeding £2500, and further reciting
that the accounts had been balanced, showing £806 Is. M. due
by James Leith, and £1217 19s. M. due by the Leiths, as of the
31st of December, 1859 : it was witnessed, that the Leiths cove-
nanted with appellant that during five years, and so long as the
mortgages of the 23rd of January, 1860, should continue, to
consign to the appellant not less than two -thirds of all the sugar,
rum, and other produce, made in Charlotte-Ville, Telescope,
Speyside, Eunnymede, Old Grange, New Grange, Grafton, and
Kendal Place, and on their leaving the Island to nominate the
appellant's nominee as manager of the estates, and to send to the
appellant lists of supplies for the estates, which the appellant
was to have the option of supplying ; and by the same deed the
application of the proceeds of the consignments was to be for
payment as follows : first, of interest on the mortgage debts due

84 LIEN.

No. 1. — In re Leith's Estate ; Chambers v. Davidson, L. R. 1 P. C. 298, 299.

to the appellant; second, of the costs of supplies by the appellant;
third, of drafts for Island contingencies, or for discharging any
of the before-mentioned mortgages on the plantations or estates ;
fourth, of insurances and incidental consignment expenses, but
so long only as the shipments of each year shall exceed the
expenses of the same year; and, lastly, of the principal mortgage
debts of £2500 and £800; and the appellant thereby covenanted,
so long as the Leiths' covenant to consign lasted, to receive and
sell the consignments and ajiply the proceeds for the purposes
above mentioned, and, as long as the annual consiQ-nments should
yield a surplus above the annual expenses, act as consignee ami
factor of the Leiths. There was also in the deed a covenant for
stay of proceedings by the appellant for five years.

No notice of the appellant's consignment deed or claim was
given either by the Leiths, or the appellant, to the respond-
ents, nor were the respondents aware of the existence of the
same previous to the claim of the appellant being filed in this

The respondents never took possession of the mortgaged estates

under their mortgage, but left the management and culti-

[*299] vation of * the estates, as usual, in the hands of the Leiths ;

the mortgagees relying on the performance by the Leiths

of their covenant to consign.

John Leith died on the 19th of April, 1862, intestate, leaving
James Leith, his partner, and George Leith, his eldest brother and
heir-at-law, whereby the equity of redemption of the mortgaged
premises became vested either in James Leith or George Leith, in
fee simple.

In the month of October, 1862, arrangements were made with
James Leith, by Mr. Gillespie, a West Indian merchant in
London, on behalf of the respondents, by which he was to have
all the produce of the mortgaged estates consigned to liim on
behalf of the respondents, and at the same time Mr. Gillespie
arranged to supply the means of cultivation of the same, upon
the understanding that James Leith was to apply the means so
supplied in such cultivation.

The last-mentioned consignment transactions resulted in a
balance against James Leith, on account of the estates, of the
sum of £.581 12s. 8^. at 31st of December, 1863, and of £328
105. lid. at 31st of December, 1864. The estimated produce of

i;. c. VOL. XU.J LIEN. 85

No. 1. — In re Leiths Estate ; Chambers v. Davidson, L. R. 1 P. C. 299, 300.

Old Grange, New Grange, and Grafton, and Kendal Place, in the
year 1862, was about 250 hogsheads of sugar.

On the 8th of January, 1864, the respondents filed their petition
ill the West India Incumbered Estates Court, stating their mort-
gage debt, and praying for a sale of the mortgaged premises com-
jirised therein ; and after the usual conditional order, and notice
for claimants, and the appointment of a receiver, the estates were
sold on tlie 21st of February, 1865, and one of the respondents,
Alexander Davidson, was declared the purchaser of New Grange
for £1510; Old Grange, £2010; and Gmfton, £1010.

On the 2nd of June, 1865, the appellant made a claim in the
Incumbered Estates Court, stating that for some years before the
31st December, 1859, and from that time during the period shown
by the account filed therewith, he was the consignee of the
produce of New Grange, Old Grange, and Grafton estates, and
Kendal Place. That there was due to him on the balance of the
account on the 31st December, 1864, the sum of £2859 8s. 2d.,
which he claimed, with interest at £4 per cent per annum
from that day, out of the sale moneys of the estates, and [* 300]
out of any moneys to arise by the intended sale of Kendal
Place, in priority to all persons whomsoever, That as such con-
signee he had accepted and paid bills of exchange, drawn on him
by the Leiths for the purposes of the estates, and had shipped
stores and supplies for the estates, and made other payments and
advances to the Leiths for the cultivation and working of the
estates, and that by reason of such consignments and such ship-
ments, payments, and advances, there was an account current
between them relating to the estates.

The account current filed commenced on the 31st December,
1859, nnd ended on the 31st December, 1864, and the first item
therein was, " 1859, 31st December. To balance of account
current rendered, £1217 19s. "

The account only purported to cover advances during the years
1860 and 1861, and to give credit for partial consignments during
the years 1860, 1861, and 1864. Some produce from other estates
was included in the account, amounting to £466 lis. Id., which
was balanced by a payment of the same amount on the other side ;
it was a general account, not purporting to be confined to any
particular estate.

An affidavit was filed on behalf of the respondents, by Mr.

86 LIKN.

No. 1. — In re Leith's Estate ; Chambers v. Davidson, L. R. 1 P. C. 300, 301.

Gillespie, in which he explained the difference between a con-
signee of West India estates and his duties in regard to advances
and returns; and accounts of the produce on the one hand, and
the mere account current of a merchant receiving partial consign-
ments and making advances against produce without keeping any
accounts of the estate, or being the consignee thereof, on the other
hand, giving instances of consignee accounts properly so called ;
and he stated, that the account of the appellant was not a con-
signee account, but a mere account current. The respondent,
Alexander Davidson, filed his affidavit stating such of the facts,
hereinbefore set forth, as related to the mortgage of the respondents,
and especially that no consent, express or implied, was given by
them for the consignment deed of the appellant, and that they
were ignorant of its existence until the claim was made by appel-
lant, and submitting that the appellant's claim ought to be

[* 301] *The appellant filed an affidavit in answer, in which he
stated the origin of his claim under the deed of the 15th
of March, 1860. That he had for several years, prior to 1859,
been the consignee of a portion of the crops of the Old Grange,
New Grange, Grafton, and Kendal Place estates, and that he had
been applied to by the Leiths at the close of that year for further
advances to maintain the cultivation of those estates, which he
declined to make without some specific arrangement, which
resulted in the consignment deed. That there were other estates,
and also some stores, belonging to James Leith, for which he (the
appellant) had made advances, but that all these advances were
contained in a separate account, kept in the name of James Leith
only, on which account there was a balance due to him of £900
and upwards, exclusive of the balance of £2859 8,s-. 2d. on the
joint account of John Leith and James Leith ; and that the crop
entries of £466 lis. Id. had been only introduced into the account
for convenience.

The appellant's claim was heard before the Commissioners in
the month of July, 1865, and on the 15th of August, 1865, the
Chief Commissioner (Mr. Fleming, Q. C. ,) delivered the judgment
of the Court, disallowing the appellant's claim to priority over
the mortgagees on the ground that the rights of the appellant must
be governed by the provisions of the consignment deed, and that,
according to the true construction of that deed, the appellant's

K. C. VOL. XVI.] LIEN. 87

No. 1. — In re Leith's Estate ; Chambers v. Davidson, L. R. 1 P. C. 301, 302.

rights were taken and made subject to the prior title and interest
of the mortgagees ; that the deed stated that the estates were sub-
ject to the mortgages, and that the grantors must be held to have
granted only according to their interest as mentioned in the deed,
that is, as affected by the mortgages and the rights of the mort-
gagees, and that the consignment was to continue only until pos-
session was taken by the mortgagees, and was determinable by
their act, and that, according to the true construction of the deed,
the appellant's agreement was to take subject to the prior rights
of the mortgagees, and that the Court could not relieve him from
the effect of that agreement. The Court also suggested other
grounds which appeared to lead to the same conclusion.

The present appeal was from this judgment.

*The Attorney-General (Sir John Rolt) and Mr. Archi- [*302]
bald Smith, for the appellant : —

We submit that the judgment of the learned Chief Commis-
sioner is erroneous, that it is founded on a mistaken view of the
duties and rights of a consignee of a West Indian estate. The
appellant in his dealings with Messrs. Leith, in furnishing sup-
plies, and accepting the drafts for cultivation, acted according to
the general usage of merchants and consignees in this country of
West Indian estates in the actual occupation of their owners.
Such a course of dealing is not only absolutely necessary for the
profitable cultivation of the estate, but for preventing the same
from becoming deteriorated and going to waste. The effect of
such dealing is to give the consignee a lien over all other incum-
brancers. It is to the disparagement of this admitted lien that
the judgment of the Chief Commissioner goes ; and he proceeds
on the presumption that the consignment deed of the 15th of
March, 1860, is a waiver or postponement of his general lien as a
consignee, in favour of the respondents, the prior incumbrancers
on the estate. But the appellant is himself a mortgagee of a
portion, as well as the consignee of the estates, and the ques-
tions which arise are : First, to what extent does the general lien
extend, against whom, and whether against a mortgagee or prior
incumbrancer? and, secondly, whether in this case, the appellant
being consignee, and having a deed of consignment executed in
his favour, which at the same time is a deed of mortgage, has
thereby consented to waive or postpone his rights as consignee,
and take only such interest in the estate as his mortgage gives

88 LIEN.

No. 1. —In re Leiths Estate ; Chambers v. Davidson, L. K. 1 P. C. 302, 303.

liim ? Tlie effect of a covenant for consignment in a mortgage i«
considered in Bunhury v. Winter, 1 J. & W. 255 (21 E. R. 159).
Now, as far as the decisions go, the lien of a consignee has been
universally held to extend to the exclusion of the mortgagee's
prior rights. In Scuit v. Neshitt, 14 Ves. 438 (9 K. li. 318),
where the circumstances seem to have been similar to this case,
the decision went to the effect, that where there is a consignee in
receipt of the whole of the proceeds of the estate, and supplying
the necessary means for carrying on the estate, if the produce is
insufhcient to pay the mortgagees on the estate, the consignee
has a lien on the future proceeds of the estate. [Lord West-
BURV. : — Does Lord Eldon, in his judgment in Scott v.
[* 303] " Neshitt, mean to go further than to decide that a con-
signee has a general lien ?] West Lidia estates are sui
generis, one year's neglect to cultivate might render the estate
wholly unproductive and valueless. That case was followed by
Sayers v. Whitjield, 1 Knapp's P. C. Cases, 148 ; Simond v.
Ilihhert, 1 Euss. & My. 719 ; Farquharson v. Balfour, 8 Sim.
210; Shaw v. Simpson, 1 Y. & C. N. R. 732; Morrison v.
Morrison, 2 Sm. & Giff. 564, which was carried to the Court of
Appeal, and was heard by the Lords Justices, but the judgment
of Vice-Chancellor Stuart was sustained (7 De G. , M. & G. 214;)
then there are the observations of Lord St. Leonards in Re
Tharp, 2 Sm. & Gif!'. 578-9, where that learned Judge likens the
principle upon which the title of consignees has been supported to
the practice acted upon in Ireland in regard to fines paid upon
renewable leaseholds. In Fraser v. Burgess, 13 Moore's R C.
Cases, 314, all the authorities are collected, and the whole ques-
tion of the general lien of a consignee discussed and considered by
this Court. The Privy Council had previously declared, in Miles
v. Atherton, 3 Burge's Comm. on Col. & For. Law, p. 350, the
lien of a trustee under a will, for supplies to a plantation, in pref-
erence to a mortgagee's claim. All principles of equity combine
to uphold the lien we contend for ; the estate becomes valueless
if the supplies cease, like a ship re([uiring necessary repairs, where
the last bottomry bond has preference, and it has been held that
the hypothecation of a ship cannot deprive the seaman of his right
t(i wages. The Si/dneg Cove, 2 Dods. 13. So in the case of mort-
gages on policies of insurance where the premiums have been paid
by the second mortgagee. The decisions in the Court of the

R. C. VOL. XYI.] LIEN. 89

No. 1. — In re Leith's Estate ; Chambers v. Davidson, L R. 1 P. C. 303, 304.

Commissioners of the West India Incumbered Estates have been
uniformly in favour of the lien of the consignee. GreatheacV s
Case, Gust's West Ind. Incuni. Estate Acts, p. 219 [2nd ed. ];
ffarriott's Case, ibid. 271 ; MacDouieW a Case, Gust's West Ind.
Incura. Estate Acts, p. 300 [2nd ed. ]. Then the question is,
whether the rights of the appellant as a merchant and consignee,
either as regarded past or future advances, were limited or in any
manner restricted by the consignment deed of the 15th of
March, 1860. We contend * that his rights as consignee [*304]
were paramount to his interest as mortgagee, that they
extended over all the estates in support of which he made con-
signments, though he is restricted as to his mortgage rights to
the estate specifically named as his security. His rights under
the consignment deed were, as regarded the mortgagees, neces-
sarily subject to their prior title and interest; and the expressions
in the deed of what was implied if not expressed therein could
have no effect on his lien as a consignee ; the prior mortgagees
must be held to have, at least tacitly, consented to the arrange-
ment for consigning the produce of the estates in mortgage, they
might have interposed at any time to stop the supplies, but being
no parties to the consignment deed, were not affected by it, and
were not entitled to take any benefit under it. Then again, the
discretion given by the deed as to sending out supplies was noth-
ing more than the arrangement which is incident to the ordinarv
course of dealing between consignee and planter, and could not
prejudice the appellant's lien for such supplies as he might fur-
nish, or for such drafts as he might accept.

Sir E. Palmer, Q. G. , and Mr. W. W. Mackeson, appeared for
the respondents, but were not called upon.

Lord Westbury : —

Their Lordships are of opinion that in this case there are special
circumstances in the relation existing between Mr. Chambers, the
appellant, and the proprietors of the West India plantations, upon
which they propose to rest their judgment, and which relieve
them from the necessity of considering the important propositions
of law which have been adverted to in the able argument at the

The ordinary mercantile character and position of a consignee
of a West India i)lantation are well known. The custom of the
mercantile world is to select as consignee a merchant residing in

90 LIEX.

No. 1. — In re Leith's Estate ; Chambers v. Davidson, L. K. 1 P. C. 304, 305.

this country, tt) whom the whole produce of the plantations is
consigned, and who, in return for that produce, accepts bills
drawn upon him by the proprietor or manager in the West Indies
for Island contingencies ; and who, according to the orders of the
manager or proprietor, purchases the supplies needed for the estate,

and sends them over to the Island.
[* 305] * There is no necessity in a case of this kind that there
should be any contract for the purpose of determining the
right of the consignee. The right of the consignee, as it is sup-
posed to be established by decisions, giving him a lien on the
plantation in respect of the balance due to him, is an exception
to the general rule which applies to principal and agent.

But lien is not the result of an express contract; it is given by
implication of law. If, therefore, a mercantile relation, which
might involve a lien, is created by a written contract, and secur-
ity given for the result of the dealings in that relation, the express
stii)ulation and agreement of the parties for security exclude lien,
and limits their rights by the extent of the express contract that
they have made. JSxpressuvi facit ccssare taciturn. If a con-
signee takes an express security, it excludes general lien.

In the present case, the question is, whether Mr. Chambers can
lie regarded as the consignee of these plantations in the ordinary
sense, or whether he is a mortgagee with the appointment of
receiver as part of his security. He refers his appointment as
consignee to a particular indenture, and we have to consider,
therefore, whether that indenture does not define the rights and
interests that he shall have in respect of his dealings with this

The deed is dated the 15th of March, 1860. It is made between
Messrs. Leith, the proprietors of the plantations, or of the equity
of redemption of those plantations, on the one hand, and Mr.
Chambers on the other. The state of circumstances existing at
that time between Mr. Chambers and the Leiths, which are set
forth in the recitals of the deed, may be shortly stated. In the
first place, Messrs. Leith, in the month of January, 1860, had
mortgaged three plantations to Mr. Chambers, — plantations which
are none of them included in the mortgage of the present re-
spondents. This mortgage was to secure the existing debt, and
all future advances to be made by Chambers not exceeding the
-^um of £2500. It also appears that there was another mortgage

R. C. VOL. XVI.] LIEN. 91

No. 1. — In re Leith's Estate ; Chambers v. Davidson, L. K. 1 P. C. 305, 306.

deed made by the Leiths to Chambers, dated on a later day of the
same month of January, 1860, by which a certain other property,

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