5 Taunton, 176, cisterns, and sold the plaintiff twenty tons, which, however, were neither weighed nor separated from the White v. Wilkes; bulk, it was held, that no property passed, and the buyer's assignees could not recover in trover against the vendor. 4 Taunton, 644, Austen v. Craven. The best delivery that the case will admit of will be sufficient. As where a man, having contracted with a canal company as their engineer, to build locks, &c. bought timber and other materials for the purpose, but being indebted to the company, executed a bill of sale to them of these goods, accompanied by the delivery of 7 Term Rep.67, a halfpenny; this was held a valid transfer, for there Manton v. Moore. 5 Taunton, 759, need not be a transmutation from hand to hand, and as far as possession could be given of property on the company's premises, it was so given in this case. If goods are put on board the purchaser's vessel, and Ogle v. Atkin- so come under his dominion, the property is vested, and 1 Marshall, 323. any arrangement respecting the bills of lading made son; same case, without his assent will not alter the case. So where the change of mark from 4. to B. was made on bales of 14 East, 323, by Lord Ellen- goods in a warehouse, this alteration of the initials was borough. held to operate as an actual delivery of the goods. There is a distinction, with reference to the vesting of property, between cases where it is part of the bargain that money shall be advanced as the work agreed for goes forward, and where the agreement is quite silent on that head. Thus, even where all the purchase money for a barge had been paid in advance, but before it was finished and delivered the builder became a bankrupt, 1 Taunton, 320. the Court held, that no property passed; “ If,” said Mr. Justice Heath," the thing be in existence at the "time of the order, the property of it passes by the low v. Mangles." contract, but not so where the subject is to be made." A ship was to be paid for by four instalments, to take place at different progresses of her building, the first when the keel was laid, &c.; and the question was, Id. 318, Muck whether, after payment of three instalments, when the builder became a bankrupt, the vendee was entitled to the ship, and the Court held that he was; the case of Mucklow and Mangles was distinguished on the ground of there having been no stipulated advances; and with respect to the opinion of Mr. Justice Heath in that case, that the builder might, if he pleased, substitute any other barge, here that difficulty was removed by the shipbuilder having signed the necessary certificate prior to registry, and so marking the specific vessel (k). So that the doctrine which went the length of denying that any property would vest which was not really in exist- See Comyu, ence, seems to be a little qualified by this decision. Lien. It is reasonable that the seller of goods should receive the money for them before their delivery; until the claim is satisfied, therefore, there is a lien upon them, as it is called. This lien is not upon a man's own goods, for he has parted with these to another, but it is the right to retain them until the original price be paid. Liens are either general or particular; general as they govern the ultimate balance of account, particular as they respect a certain description of goods either sold or entrusted for the purpose of repair, &c. to the party insisting on the lien. No sub-liens are allowed; as, for example, in favour of a broker with whom a deposit of some commercial instrument may have been made; and the deposit does not deprive the original party of his claim. So that the assignee of a policy of insurance on goods, to whom a bill of lading was indorsed by the consignor, who had directed his correspondent to make (k) But the name of the buyer was painted on the stern in Mucklow and Mangles, and that made no difference. Q 5 Barnewall & Woods v. Rus Alderson, 942, sell. P. 152. Comyn. p. 152. the insurance, took it subject to the correspondent's lien for his general balance, and was compelled to permit that lien to be satisfied before he received payment from the Man v. Shiffner. broker in whose hands the policy had been deposited. 2 East, 523, But the broker, knowing that the insurance had been effected in the name of another person than the correspondent, was held not entitled to a further lien for his general balance with that correspondent. To enforce this right, the party must have either an actual or a constructive possession; and an unsatisfied demand. So that where a factor received goods by the shipper's order after the bankruptcy of the shipper, although they were sent on the factor's account, and he had accepted bills on the faith of the consignment, he did not gain thereby any right of this kind in respect of his general balance. Without other circumstances, the mere sending goods to be disposed of under a del credere commission is not sufficient to create the right; and in the case cited, the shipper's order seemed of itself to be an act of ownership. So where a banker, having misapplied securities, had inclosed some bonds in an envelope, with a direction and memorandum importing that they belonged to the customer, and, being on the point of stopping payment, sent them to that customer; it was held, that no property in these bonds passed to the party in question, and consequently that he could not have any lien upon them, for the whole rested in intention; the banker's wish was to replace the stock, or deliver the securities before his bankruptcy, but he never accomplished his intentions. And thus, in general, when the owner of the cargo or goods gives up the possession, his right to retain for the price is gone. But where a printer was employed upon a work to be completed in numbers, some of which he delivered, but insisted upon a lien for his general balance in respect of the particular copies re maining in his hands, he was held to be authorised in withholding these books, although the numbers were not printed consecutively, and although the charges were made separately upon each number. 3 Maule & Sel. 167, Blake v. Nicholson; 180, Chase v 5 Maule & Sel. Westmore. So a tailor, employed to make a suit of clothes, has In the same a lien for his money upon any part of them. Again, if the possession be given up either from mistake or necessity, the lien will in many cases remain. As if one deliver up the title deeds of an estate to the purchaser at an auction, which purchase is afterwards set aside, the creditor's lien survives. So where goods are removed into the West India docks in pursuance of the law, the captain does not lose his right of lien, for, rather than the party shall be prejudiced, the law will retain his lien for him. So, again," where a factor is in "advance for goods by actual payment, or where he "sells under a del credere commission, whereby he "becomes responsible for the price, there is little doubt "that he has a lien on the price, though he has parted "with the possession of the goods." Of absolute and conditional deliveries of goods we have already spoken; it needs only to be remarked, therefore, that where any thing remains to be done on the vendor's part before the property is ready for delivery, the vendee will not have acquired a sufficient interest to avoid the customary lien. The plaintiffs built a carriage for a customer, who did not pay for it, and on action brought they recovered against the purchaser for goods bargained and sold; under a writ of fi.fa. the sheriff seized this carriage as part of the purchaser's goods: the Court held that the lien was not gone; that it might, indeed, have been different, had the action been for goods sold and delivered, but that the plaintiffs were here in possession of a carriage unpaid for. To establish a claim of lien on the part of the individual in possession, it is observable, that the possession 1 case, by Lord Ellenborough. 12 Vesey, jun. Morgan. 6, ex parte Maule & Sel. 163, by Lord Ellenborough. By Chambre, J. 2 Starkie, 337, Desanges. Houlditch v. Lucas v. Dor rien. must not have been given through a mistake; for where a banker refused to advance money on a lease which was nevertheless then left accidentally in his hands, it was considered that he had no lien upon it. And the pos7 Taunton, 278, session is so far confined to the goods themselves, that where they are insured, the insurance money cannot be treated as the subject of lien: thus, where the seller was to have the control over certain sugars till they were paid for, but the purchaser, without any stipulation to that effect, insured the cargo, the shipment being at his risk; it was held, that the compensation from the underwriters which accrued in consequence of capture, was rightly placed to the credit of the vendee by his agents, and that these persons were not bound to apply such proceeds in the first instance to the discharge of bills drawn by the purchaser for the goods. 1 Barnewall & Cresswell, 657, of A possession for a specific purpose will not always confer a lien, nor will a mere deposit for the purpose safe custody. A factor got possession of a certificate of registry in order to pay certain tonnage duties, and then withheld the instrument under pretence of a lien; it was 2 Starkie, 272, held, that he had no right whatever to retain it under Burn v. Brown. these circumstances. And when a bill, for example, is parted with for a specific purpose, as to enable the Bruce v. Hurley. pledgor to obtain payment, the lien is not destroyed. So where the proprietor of goods agreed to sell them to one of his creditors, with an understanding that the proceeds should be appropriated towards the liquidation of the debt, and the factor of the proprietor received the goods under a charge to sell them, and account to the creditor; it was held, that the factor acquired no right of lien against the creditor for his principal's general balance. 8 Taunton, 499, So a fuller, who received cloths for the special purpose of dressing them, was not permitted to detain them for his general balance. So gaining possession wrongfully will not give this right, although certain incidental expenses, 1 Vesey, jun. 416, Weymouth v. Boyer. Rose v. Hart. |