Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-10-29
MrN OF PnIYILRsEs

n our States, in which so largea number
~ h peopls 1t large have an interest
and there is certainly none in which our
Iagi-lstion and Jurisprudence are 80 I'M
nerfsct. and productive Of so much IN
Justice for want Of harmony of principles
and efficiency, as that Of liens.
The liens known 10 the law are mani
fold. Among those thst are OF most
general interest are those Of judgments
and executions, on lands and chattels I;
Of the vendor Of land for the price Of
those who furnish materials for build
ing7. and the contractors and worknen
Of arm.Iaborers upon the crops Of the
hands employed on bOsts end vessels
and those who repair them OF furnish
them supplies; and Of factors, upon
cotton snd other products, for advances
upon them.
Il the law Of lien, in CUR Common
Law ststes there is no uniformity or
consistency Whatever. It Is but 3 con-
fused mass, not reduced to any system
because not proceeding from any fixed
and general principles. To reform it, it
would De necessary, as with the law Of
Limitation or prescription, to 60 back to
the beginning, to begin a. the bottom
and to establish certain first principles
from which all the law on the subject
should naturally and justly flow.
What we call q lien, mot Including $
pledge or mortgsge,) is termed in the
Civil or Roman Isw . privilege; and this
is defined BY thst law to be "a right
which the quality OF the credit lwhst we
call the debt gives to 3 creditor, to be
preferred TO other and even hypothecary
creditors /" the word hypothscary
meaning, in U phraseology, debt Sc
cured by pledge or mortgage.
This definition, literallytaken from the
Roman laws, marks in positive manner
PERsIL says, the veritable characters
tics Of a privilege. 1t IS not, as its nsme
might at first lesd usto suppose, q per
soaal favour accorded by the law to the
creditor, but a right, which q rigorous
Justice necessitates, and which rests on
the quality Of the debt slone and this
Designate the different elements ofwhich
the privilege is composed. And DoMAT
SAYS, thst if the debt were not itself
privileged, it could not be made so by an
agreement between the parties. It is es-
tablished without any contractor consent
TO that effect on their part.
It Is Of the very nature Of privilege to
concur only with other privileges, to ex-
elude approximations, and to have its
rank determined, not by its date, like
hvpothecstions, but by the quality Of the
debt TO which il il attached. Thus II one
has 3 hypothscation on a house and
architects afterwards repair 1t, or after
vards perfect their lien 10 the manner
prsseribed by law, their claims will be
preferred, though the hyPothscstion il
anterior in date, and the creditor has
nothing to complain or, because his &C.
curity is augmented by the repairs, to al
amount equal to that for which the
architects are preferred to him.
So. among privileged creditors, the
preference IL regulated, not by the dates,
but by the different qualities q the priv
;lspes. Pcirlegia non temPore Gsd
-,0nt,fr. sCd II cagsa, ct 81 Cusdem ttul
flevlg,t. oOncurrUnt, Hcet diUerstdte'
seu,Dor-s IN his Iasrint. II the privileged
creditors are Of the same rank, neither
has the reference over the Other. They
are paid ooncurFeutly, though theil
privileges are Of different dates. Thos'
who are creditors for the expenses Of the
last sickness OF 3 party sre paid concur
renty, although the debts duethem we're
contracted at different times.
The owner Of a farm, who leases it
nrsserves & privilege on al the crops anC
1rodeets oft, because, DoMAT says, they
sre deemed 70 be his own, until the rem.
is PAID.
DrLvINcoUET states this principle
that if q person vino hss rented a farm
has to take the grain raised on }
TO q grsnsry elsewhere, because on |
there is no grrnary, the proprietor Of thu
has the first privilege, quid sal
rum feet pign0ris cGrsaral because il
being stored there was to preserve 1t a.
security for both. Upon The same prin-
cinle. in the Maritime law, the latel
liens have preference over the older ones
and n lien Of the seamen for wages pre-
walls over 3 prior bottOmTy bond or by
p-othecstion, FOR the same reason tina
makes a later bond for bottomry prevail
over an earlier; for the later saved IN
shao.and the services Of the sehmen saveC
# for al vino claim under bonds or lieDs
And this lien does not depend on posses
sion, but is the Priraege Of the eivi
law.
A very just maxim Of the civil law is
nonauali stunt fructus nisi inpensis de
DUCTS: there are no fruits until expenses
are deducted. From this simple and JUS
principle. not only the farm-haDds Of
nIantstion lsbourers, but merchants who
make advances or furnish supplies Of any
sort, to carry on a plantation and make q
crop. should have a privilege upon It
and ss the labour Of the hands makes
and " the crop as well for the benefit
~ the merchant who has made advances
a. Of the owner, their claims are to be
ureferred, though the merchants claim
Is the older one.
Upou the same principle, those who
make the last repairs on Ahouse ought to
he preferred, not only to mortgage-credi-
on hut 10 the earlier claims Of material
,,en and builders. For they preserve
the property for those having prior liens,
and add to their security just what their