paid or tendered the price; because, to support such action, the plaintiff must have both the right of property and the right of possession; and it will never be intended, in the absence of a specific agreement, that the purchaser was to be entitled to the possession of the goods before payment of Extra-ordi- the price (b). Further, even when the vendor has parted with the possession of the goods, a species of extra-ordinary lien continues until the purchaser has actually obtained possession; so that, if, by the intermediate insolvency of the latter, the vendor should be deprived of the reasonable chance of payment, he may recover possession by stopping the goods in transitu; which right forms the subject of the next chapter.

nary lien.

Ordinary lien.

Where it exists.

In respect of the ordinary lien of the vendor, the subject may be considered;-first, as to where the lien exists; secondly, how it is waived or determined.

1. Where the Lien exists.

The vendor in general has a lien on the goods while remaining in his possession, on the principle, that, wherever a party has bestowed expense or labour upon a particular chattel, he has a claim upon it to the amount of such charge (c). And,

(b) See per Bayley, B., 2 Cr. & Mees. 511. Of Trover by VENDEE, Part 2, Chap. ii.

(c) Bloxam v. Sanders, 4 B. & C. 941; Ockenden, ex parte, 1

press and

implied con

tracts.

while the vendor has the possession of the goods,
it is immaterial that the purchaser has agreed to
pay rent for them; for, although such agreement
is an implied transfer of possession for certain pur-
poses (d), yet it is not such a transfer or waiver of
possession as to bar the vendor's lien (e) The
lien exists as well in cases of implied contracts, as Both in ex-
where there has been an express agreement as to
price (f): a special agreement does not of itself
destroy the right, but only where it contains some
term inconsistent with that right (g). Upon the
principle of lien, the vendor is justified in refusing
to deliver goods contracted to be sold, if his
chance of payment is taken away by the subse-
quent insolvency of the purchaser (h). If the
purchaser becomes bankrupt while the goods are
remaining in the vendor's hands, the latter has a
lien against the claim of the assignees; therefore,
an action cannot be maintained by the assignees
without payment of the price (i), and of the ware-

Atk. 235; Franklin v. Hosier, 4 B. & A. 341; Chase v. Westmore,
5 M. & S. 180; Wallace v. Woodgate, Ry. & Moody, 194.
(d) See Hurry v. Mangles, 1 Campb. 452.-Post.

(e) New v. Swain, Dan. & Lloyd, Merc. Ca. 193.

(f) Chase v. Westmore, 5 M. & S. 180, (overruling Brennan v. Currint, and Collins v. Ongley, cited Bull. N. P. 45, and Selw. N. P. 1397). And see per Gibbs, C. J., Hutton v. Bragg, 7

Taunt. 25.

(g) Per Holroyd, J., and Best, J., Crawshay v. Homfray, 4 B. & A. 52. See 5 M. & S. 180.

(h) Reader v. Knatchbull, 5 T. R. 218, n.

(i) Bloxham v. Sanders, 4 B. & C. 941; see 4 B. & C. 951.

Not in sale upon credit.

Lien waiv

house duties or other charges to which the purchaser himself would have been liable (k).

Where the goods are expressed to be sold upon credit, the vendor has no lien (7); for, if by the terms of the agreement the party is entitled to have the goods immediately, and the payment in respect of them is to take place at a future time, that is altogether incompatible with the lien or right to retain the goods until payment (m). Nevertheless, if the purchaser suffers the goods to remain until the appointed period of payment has elapsed and no payment is in fact made, a lien is created, and the seller has then a right to retain them (n).

2. Where the Lien is waived or determined. If the vendor parts with the possession of the ed by part- goods, the lien will be determined (o). So it is a constructive waiver of the lien, if, when the goods are demanded, he claims to retain them on a dif

ing posses

sion.

(k) Winks v. Hassall, Dan. & Lloyd, Merc. Ca. 312; S. C. 9 B. & C. 372.

(1) Bunney v. Poyntz, 4 B. & Ad. 568, 573. See Cood v. Pollard, 10 Price, 109.

(m) See per Holroyd, J., Crawshay v. Homfray, 4 B. & A. 52; Dyer, 30, a.

(n) Per Bayley, J., New v. Swain, Dan. & Lloyd, Merc. Ca. 195. And see 4 B. & C. 948, 949.

(0) Godfrey v. Furzo, 3 P. Wms. 185; Jacobs v. Latour, 5 Bingh. 130; Jones v. Pearle, 1 Str. 557; Taylor v. Robinson, 8 Taunt. 648. See Scott v. Newington, 1 M. & Rob. 252.

ferent ground (p). And, even if the agreement was, that, after giving up the possession, the vendor should continue to have a claim on the goods until payment, this will be deemed to be only a personal licence, and cannot be enforced against any one except the purchaser himself (g).

part-deli

A delivery, however, of part of the goods does But not by not divest the vendor's lien in respect of the resi- very. due remaining in his possession (r); provided that it does not appear that such part-delivery was expressly intended to be by way of delivery of the whole (s). Therefore, where a part has been delivered either to the vendee, or to a sub-vendee, on the dishonour of acceptances given in payment by the former, neither the vendee nor the sub-vendee can maintain an action to recover the part remaining in the possession of the original vendor or of a bailee on his behalf, for the vendor's lien thereon still continues (t). But it is otherwise, where the

But it is not a suffi

(p) Boardman v. Sill, 1 Campb. 410, n. cient ground to imply a waiver of the right, that he has merely omitted making claim in respect of it; White v. Gainer, 2 Bingh.

23.

(q) Howes v. Ball, 7 B. & C. 481.

(r) Miles v. Gorton, 2 Cr. & Mees. 504; Payne v. Shadbolt, 1 Campb. 427.

(s) Buraney v. Poyntz, 4 B. & Ad. 568; see 9 B. & C. 372.

(t) Dixon v. Yates, 5 B. & Ad. 313; S. C. 2 Nev. & Man. 177; Miles v. Gorton, 2 Cr. & Mees. 504. [Qu.? whether these decisions overrule Green v. Haythorne, 1 Stark. N. P. C. 447, 450. In this case the whole of the goods for which the action was brought had been resold, and a part delivered; so that the

Unless in- delivery of part was clearly intended as a delivery

tended as

delivery of of the whole, and where the purchaser had free

the whole.

Not waived by verdict

bargained and sold.

When lien revives.

access to the residue undelivered, and might have removed it whenever he chose. Thus, in a case where, on the sale of certain trees, the cubical admeasurement of each had been ascertained, and the trees were marked and part removed, it was held that the vendor's lien was determined (u).

It has been held that, by obtaining a verdict for goods bargained and sold, the vendor did not waive his lien; though it might have been otherwise if it had been for goods sold and delivered (r): because that would seem to amount to an implied acknowledgement that the purchaser had the right of possession. The lien is lost by taking in payment a bill of exchange, and negociating it, although such payment may have been objected to at the time (y).

It seems that, in general, if possession has been given up, and the lien is once gone, it is altogether lost (2); but if the goods remain in the possession

question concerning the residue undelivered was not between the original parties, but entirely between the sub-vendee and the original vendor. The original purchaser had become insolvent, and the vendor did not notify his dissent until after the insolvency. Held, that he had lost his lien.]

(u) Tansley v. Turner, 2 Bingh. N. S. 151.

(x) Houlditch v. Desange, 2 Stark. N. P. C. 337.

(y) Horncastle v. Farran, 3 B. & A. 497; S. C. 2 Stark. N. P. C. 590.

(z) See Hartley v. Hitchcock, 1 Stark. N. P. C. 408; Good