agreement to do work may be of such a character as to exclude a lien; but the mere circumstance that a particular price for work to be done is fixed is not conclusive (ƒ). A lien may be excluded by the fact that credit is given (g).

The justification of this right is the fact that value has been imparted, or labour expended upon a certain article. It has been held that a livery-stable keeper has not a lien for the keep of a horse delivered to him in the way of his trade (gy), and that an agister of cattle has no lien in the absence of an express agreement (). On the other hand, a trainer, it is said, has a lien on a horse delivered to him to train; the horse has received additional value (i). Obviously such a distinction is in many cases difficult to apply. What, for instance, is the position of an analytical chemist, who has assayed ore, or a jeweller who has at the request of a customer ascertained the specific gravity of a jewel? Is it to be said that he has no lien unless what he has done has made the ore or the precious stone more valuable than it was? There are expressions in the authorities which seem to show that no lien would exist unless that were so. But it seems probable that the Courts would favour the existence of a lien wherever labour and skill had been bestowed, and that it would be sufficient for a workman to prove that he had done that which he was engaged to do.

(f) Hutton v. Bragg (1816), 7 Taunt. 14, 25. (g) Raitt v. Mitchell (1815), 4 Camp. 146.

(gg) Judson v. Etheridge (1833), 1 C. & M. 743.

(h) Jackson v. Cummins (1839), 5 M. & W. 342; 3 Jur. 436; see also Steadman v. Hockley (1846), 15 M. & W. 553; 10 Jur. 819; 15 L. J. Ex. 332. (A conveyancer has no lien on

a deed "with and in respect of" which he has done business for the owner, unless he has expended labour on the deed.)

(i) Jacobs v. Latour (1828), 2 M. & P. 201; 5 Bing. 130; Scarfe v. Morgan (1838), 4 M. & W. 270; 1 H. & H. 292; 2 Jur. 569. (Mare sent to be covered by stallion belong. ing to the plaintiff; the plaintiff had a lien on the mare.)

A servant has no lien upon the property of his master which he has as a servant got into his possession.

This proposition is intended to give the effect of R. v. Sankey (1) and Newington Board v. Eldridge (m). In the former the town clerk of Ludlow claimed a lien on papers of the corporation on which he had worked as attorney or solicitor. His claim was sustained; but he had no right to retain muniments with respect to which he had done no work, and which he held as town clerk and as servant of the corporation.

In the latter case, a solicitor, who was clerk to a local board, sought to retain papers and books belonging to it. Bacon, V.C., ordered him to deliver them up. But the Court of Appeal, thinking that the question of lien involved the very question to be tried in the action, varied the order, and directed the papers to be delivered only upon payment of the sum claimed by the plaintiff into Court.

If a workman is supplied with the raw materials by his master, and works them up upon the premises of the latter, he has no lien; he never had possession (n). For the same reason when a servant gets into his hands as clerk, footman, butler, &c., any articles, he has no lien. The servant's possession is in these cases his master's, and no lien attaches in favour of the former.

Lien is a personal right (0) and cannot be transferred ( p ). It is intended to protect a workman's right to remunera

(?) (1836), 5 A. & E. 423.

(m) (1879), L. R. 12 Ch. D. 349. (n) Franklin v. Hosier (1821), 4 B. & Ald 341.

(0) Buller, J., in Daubigny v. Duval (1794), 5 T. R. 604, and Thames Iron Works Co. v. Patent Derrick Co. (1860), 1 J. & H. 93; 29 L. J. Ch. 714; 6 Jur. N. S. 1013; Story on Bailments, s. 440.

(p) Selwyn's Nisi Prius, 13th ed., p. 1320. No lien will be acquired by wrongfully obtaining possession : Lempriere v. Pasley (1788), 2 T. R. 485. (Goods delivered to a person wrongfully claiming them; he may not detain them against owner until the latter repays freight, which the former has paid.)

tion, and the actual expenses of a bailee cannot be included (q).

A lien may be lost by giving up possession of a chattel. For reasons which are not altogether satisfactory, it has been laid down that a person loses a lien if he claims a right to detain a chattel upon any other ground than that of the existence of a lien, or if he claims more than is actually due (r). It is submitted, however, that this view is not correct. The question is one of intention. In the words of Parke, B. (8), it is incumbent to show that the person entitled to the lien has agreed to waive it, or has agreed to waive the necessity of the tender of the less sum due.

The right of lien cannot be greater than the right of the person at whose instance and request the labour was expended (t).

A seaman has a lien for his wages on the ship upon which he has served. It extends to the whole of the ship, and not merely as a ship, but to every plank (u). It affects even a bona fide purchaser of the vessel without notice; and it takes priority over all other liens upon the ship (x). If the value of the ship is insufficient to pay the wages, seamen may require the freight to be paid into the Admiralty Court to meet the deficiency. Any agreement by which a seaman agrees to forego this lien is void (y). By the 17 & 18 Vict., c. 104, S. 191, the master has the same lien in respect of his wages as ordinary seaman.

(4) Somes V. British Empire Shipping Co. (1860), 8 H. of L. 338.

(r) Boardman v. Sill (1809), 1. Camp. 410; Knight v. Harrison (1823), cited in Scarfe v. Morgan (1838), 4 M. & W. at p. 279.

(s) Scarfe v. Morgan, at p. 279. (t) Turner v. Letts (1855), 20 Beav. 185.

(u) Neptune (1824), 1 Hagg. 238; Madonna d'Idra (1811), 1 Dod.

37.

(a) The Sydney Cove (1815), 2 Dod. 500; The Batavia (1822), 2 Dod. 500; The Margaret (1862), 3 Hag. 238.

(y) 17 & 18 Vict. c. 104, s. 182.

CHAPTER XXII.

DUTIES OF SERVANTS.

SERVANTS are bound to obey the lawful orders of their masters, and they may be dismissed without notice for wilful disobedience of such orders (a).

The obedience which is required is not limitless. A servant is not bound to obey unlawful orders. Neither is he obliged to risk his safety (b). Servants may not be dismissed if they refuse to perform services of a kind which they did not undertake to perform. A lady's maid cannot be expected to milk cows (c), or a farm labourer to act as a domestic. servant (d). A seaman, who is engaged for one voyage, is not bound to serve for another voyage, the risks of which may be very different from those which he agreed to face. This is illustrated by Burton v. Pinkerton (e), which has

(a) As to the general principles stated in the text, see Lord Abinger in Priestley v. Fowler (1837), 3 M. & W. 1; Turner v. Mason (1845), 2 D. & L. 898; 14 M. & W. 112; 14 L. J. Ex. 311; Callo v. Brouncker (1831), 4 C. & P. 518.

(b) If a servant has been misled as to the dangers of his employment, he may throw up his engagement; Cockburn, C. J., in Woodley v. Metropolitan District Ry. Co. (1877), L. R. 2 Ex. D. at p. 388, and Lord Abinger in Priestley v. Fowler (1837), 3 M. & W., at p. 6; Limland v. Stephens (1801), 3 Esp. 269. (If a master, by inhuman treatment, compels a sailor, for his safety, to quit the ship, this will not be desertion, and will not cause a forfeiture of wages. Accordingly it

not desertion within 7 & Vict. c. 112, s. 9, if a seaman quits a ship in consequence of the cruel treatment by the master; Edwards v. Trevellick (1854), 4 E. & B. 59: or because the provisions are insufficient; The Castilia (1822), 1 Hag. 59.

(c) Bell's Principles, 77.

(d) See Campbell's edition of Fraser's Master and Servant, 78, where it is said: "Nor is a person hired to manage a farm bound to officiate as a servant of all work; nor can a gardener be forced to work in a turnip-field; nor a grieve and overseer of a coalwork be compelled to assist at the windlass-wheel, and click the coals at the pit; nor a head gamekeeper to act as under gamekeeper."

(e) L. R. 2 Ex. 340; Ross v.

been already mentioned. The plaintiff had engaged to serve for twelve months as a mariner from London to various ports in North and South America, and to obey all lawful commands. War was declared between Spain and Peru, and a proclamation enjoining neutrality was issued by the English Government. Acting under the orders of the Peruvian Government, the captain told the crew at Rio that the next destination was Callao. The plaintiff objected to serve further, on the ground that the voyage was illegal, and he left the ship. It was held that an action for breach of contract lay against the owners, inasmuch as the vessel was used for purposes which made the crew liable to more risks than were incident to an ordinary commercial voyage. The general rule, however, is, as Baron Parke stated in Turner v. Mason (f), that "the obligation of a domestic servant is to obey all lawful commands." It matters not how inconvenient to the servant, or how harsh or cruel the orders may be; they may be even unreasonable; provided they be lawful and within the scope of his employment, he must obey them on pain of dismissal. "The master is to be the judge," as Baron Parke observes in the same case, "of the circumstances under which the servant's services are required, subject to this, that he is to give only lawful commands." This principle was carried to an extreme length in Turner v. Mason (f). A housemaid having insisted, contrary to her master's orders, upon visiting her sick and dying mother, was dismissed; and the Court of Exchequer was of opinion that, even if the master had had

(1829), 9 B. & C. 896.

(ƒ) (1845), 14 M. & W. 112, 115; 2 D. & L. 898; 14 L. J. Ex. 311. See Spain v. Arnott (1817), 2 Sta. 256; Callo v. Brouncker (1831), 4 C. & P. 518; and two Scotch cases, similar to Turner v. Mason; Hamilton v. McLean, 9 Dec. 1824, 3 D. & S. 379, 268; A. v. B. (1853), 16 D. 269.