Chapter XVIII: Front Matter (18)

_Waiver._--Any parting with the possession of goods is in general a waiver of the lien upon them; for example, when a factor having a lien on the goods of his principal gives them to a carrier to be carried at the expense of his principal, even if undisclosed, he waives his lien, and has no right to stop the goods _in transitu_ to recover it; so also where a coach-builder who has a lien on a carriage for repairs allows the owner from time to time to take it out for use without expressly reserving his lien, he has waived it, nor has he a lien for the standage of the carriage except by express agreement, as mere standage does not give a possessory lien. It has even been held that where a portion of goods sold as a whole for a lump sum has been taken away and paid for proportionately, the conversion has taken place and the lien for the residue of the unpaid purchase-money has gone (_Gurr_ v. _Cuthbert_, 1843, 12 L.J. Ex. 309). Again, an acceptance of security for a debt is inconsistent with the existence of a lien, as it substitutes the credit of the owner for the material guarantee of the thing itself, and so acts as a waiver of the lien. For the same reason even an agreement to take security is a waiver of the lien, though the security is not, in fact, given (_Alliance Bank_ v. _Broon_, 11 L.T. 332).

_Sale of Goods under Lien._--At common law the lien only gives a right to retain the goods, and ultimately to sell by legal process, against the owner; but in certain cases a right has been given by statute to sell without the intervention of legal process, such as the right of an innkeeper to sell the goods of his customer for his unpaid account (Innkeepers Act 1878, § 1), the right of a wharfinger to sell goods entrusted to him by a shipowner with a lien upon them for freight, and also for their own charges (Merchant Shipping Act 1894, §§ 497, 498), and of a railway company to sell goods for their charges (Railway Clauses Act 1845, § 97). Property affected by an equitable lien or a maritime lien cannot be sold by the holder of the lien without the interposition of the court to enforce an order, or judgment of the court. In Admiralty cases, where a sale is necessary, no bail having been given and the property being under arrest, the sale is usually made by the marshal in London, but may be elsewhere on the parties concerned showing that a better price is likely to be obtained.

AMERICAN LAW.--In the United States, speaking very generally, the law relating to liens is that of England, but there are some considerable differences occasioned by three principal causes. (1) Some of the Southern States, notably Louisiana, have never adopted the common law of England. When that state became one of the United States of North America it had (and still preserves) its own system of law. In this respect the law is practically identical with the Code Napoleon, which, again speaking generally, substitutes privileges for liens, i.e. gives certain claims a prior right to others against particular property. These privileges being _strictissimae interpretationis_, cannot be extended by any principle analogous to the English doctrine of equitable liens. (2) Probably in consequence of the United States and the several states composing it having had a more democratic government than Great Britain, in their earlier years at all events, certain liens have been created by statute in several states in the interest of the working classes which have no parallel in Great Britain, e.g. in some states workmen employed in building a house or a ship have a lien upon the building or structure itself for their unpaid wages. This statutory lien partakes rather of the nature of an equitable than of a common-law lien, as the property is not in the possession of the workman, and it may be doubted whether the right thus conferred is more beneficial to the workman than the priority his wages have in bankruptcy proceedings in England. Some of the states have also practically extended the maritime lien to matters over which it was never contended for in England. (3) By the constitution of the United States the admiralty and inter-state jurisdiction is vested in the federal as distinguished from the state courts, and these federal courts have not been liable to have their jurisdiction curtailed by prohibition from courts of common law, as the court of admiralty had in England up to the time of the Judicature Acts; consequently the maritime lien in the United States extends further than it does in England, even after recent enlargements; it covers claims for necessaries and by material men (see _Maritime Lien_), as well as collision, salvage, wages, bottomry and damage to cargo.

Difficulties connected with lien occasionally arise in the federal courts in admiralty cases, from a conflict on the subject between the municipal law of the state where the court happens to sit and the admiralty law; but as there is no power to prohibit the federal court, its view of the admiralty law based on the civil law prevails. More serious difficulties arise where a federal court has to try inter-state questions, where the two states have different laws on the subject of lien; one for example, like Louisiana, following the civil law, and the other the common law and equitable practice of Great Britain. The question as to which law is to govern in such a case can hardly be said to be decided. "The question whether equitable liens can exist to be enforced in Louisiana by the federal courts, notwithstanding its restrictive law of privileges, is still an open one" (Derris, _Contracts of Pledge_, 517; and see _Burdon Sugar Refining Co._ v. _Payne_, 167 U.S. 127).

BRITISH COLONIES.--In those colonies which before the Canadian federation were known as Upper Canada and the Maritime Provinces of British North America, and in the several Australasian states where the English common law is enforced except as modified by colonial statute, the principles of lien, whether by common law or equitable or maritime, discussed above with reference to England, will prevail; but questions not dissimilar to those treated of in reference to the United States may arise where colonies have come to the crown of Great Britain by cession, and where different systems of municipal law are enforced. For example, in Lower Canada the law of France prior to the Revolution occupies the place of the common law in England, but is generally regulated by a code very similar to the Code Napoleon; in Mauritius and its dependencies the Code Napoleon itself is in force except so far as modified by subsequent ordinances. In South Africa, and to some extent in Ceylon and Guiana, Roman-Dutch law is in force; in the island of Trinidad old Spanish law, prior to the introduction of the present civil code of Spain, is the basis of jurisprudence. Each several system of law requires to be studied on the point; but, speaking generally, apart from the possessory lien of workmen and the maritime lien of the vice-admiralty courts, it may be assumed that the rules of the civil law, giving a privilege or priority in certain specified cases rather than a lien as understood in English law, prevail in those colonies where the English law is not in force. (F. W. Ra.)

FOOTNOTE:

[1] This right, however, is not absolute, but depends on the custom
of the port (_Raitt_ v. _Mitchell_, 1815, 4 Camp. 146).

LIERRE (Flemish, _Lier_), a town in the province of Antwerp, Belgium; 9 m. S.E. of Antwerp. Pop. (1904) 24,229. It carries on a brisk industry in silk fabrics. Its church of St Gommaire was finished in 1557 and contains three fine glass windows, the gift of the archduke Maximilian, to celebrate his wedding with Mary of Burgundy.

LIESTAL, the capital (since 1833) of the half canton of Basel-Stadt in Switzerland. It is a well-built but uninteresting industrial town, situated on the left bank of the Ergolz stream, and is the most populous town in the entire canton of Basel, after Basel itself. By rail it is 9¼ m. S.E. of Basel, and 15¾ m. N.W. of Olten. In the 15th-century town hall (_Rathaus_) is preserved the golden drinking cup of Charles the Bold, duke of Burgundy, which was taken at the battle of Nancy in 1477. In 1900 the population was 5403, all German-speaking and mainly Protestants. The town was sold in 1302 by its lord to the bishop of Basel who, in 1400, sold it to the city of Basel, at whose hands it suffered much in the Peasants' War of 1653, and so consented gladly to the separation of 1833.

LIEUTENANT, one who takes the place, office and duty of and acts on behalf of a superior or other person. The word in English preserves the form of the French original (from _lieu_, place, _tenant_, holding), which is the equivalent of the Lat. _locum tenens_, one holding the place of another. The usual English pronunciation appears early, the word being frequently spelled _lieftenant_, _lyeftenant_ or _luftenant_ in the 14th and 15th centuries. The modern American pronunciation is _lewtenant_, while the German is represented by the present form of the word _Leutnant_. In French history, _lieutenant du roi_ (_locum tenens regis_) was a title borne by the officer sent with military powers to represent the king in certain provinces. With wider powers and functions, both civil as well as military, and holding authority throughout an entire province, such a representative of the king was called _lieutenant général du roi_. The first appointment of these officials dates from the reign of Philip IV. the Fair (see CONSTABLE). In the 16th century the administration of the provinces was in the hands of _gouverneurs_, to whom the _lieutenants du roi_ became subordinates. The titles _lieutenant civil_ or _criminel_ and _lieutenant général de police_ have been borne by certain judicial officers in France (see CHÂTELET and BAILIFF: _Bailli_). As the title of the representative of the sovereign, "lieutenant" in English usage appears in the title of the lord lieutenant of Ireland, and of the lords lieutenant of the counties of the United Kingdom (see below).

The most general use of the word is as the name of a grade of naval and military officer. It is common in this application to nearly every navy and army of the present day. In Italy and Spain the first part of the word is omitted, and an Italian and Spanish officer bearing this rank are called _tenente_ or _teniente_ respectively. In the British and most other navies the lieutenants are the commissioned officers next in rank to commanders, or second class of captains. Originally the lieutenant was a soldier who aided, and in case of need replaced, the captain, who, until the latter half of the 17th century, was not necessarily a seaman in any navy. At first one lieutenant was carried, and only in the largest ships. The number was gradually increased, and the lieutenants formed a numerous corps. At the close of the Napoleonic War in 1815 there were 3211 lieutenants in the British navy. Lieutenants now often qualify for special duties such as navigation, or gunnery, or the management of torpedoes. In the British army a lieutenant is a subaltern officer ranking next below a captain and above a second lieutenant. In the United States of America subalterns are classified as first lieutenants and second lieutenants. In France the two grades are _lieutenant_ and _sous-lieutenant_, while in Germany the _Leutnant_ is the lower of the two ranks, the higher being _Ober-leutnant_ (formerly _Premier-leutnant_). A "captain lieutenant" in the British army was formerly the senior subaltern who virtually commanded the colonel's company or troop, and ranked as junior captain, or "puny captain," as he was called by Cromwell's soldiers.

The lord lieutenant of a county, in England and Wales and in Ireland,
is the principal officer of a county. His creation dates from the
reign of Henry VIII. (or, according to some, Edward VI.), when the
military functions of the sheriff were handed over to him. He was
responsible for the efficiency of the militia of the county, and
afterwards of the yeomanry and volunteers. He was commander of these
forces, whose officers he appointed. By the Regulation of the Forces