age due upon goods is by the course of trade payable at Christmas, whether the goods are in the mean time removed or not, there arises no lien on the goods for the wharfage. Id. 4 B. and A. 50. In general a lien cannot arise unless the party claiming it has possession of the goods. Kinloch v. Craig, 3 T. R. 119, 783, Taylor v. Robinson, 8 Taunt. 648. And where a party obtains the possession of goods by misrepresentation he cannot claim a lien upon them, though had they come rightfully to his hands, he might have been entitled to retain them. Madden v. Kempster, 1 Campb. 12, and see Lempriere v. Pasley, 2 T. R. 485. In order to establish a lien it must appear that the work, &c. in respect of which it was claimed, was done at the request of the owner of the goods detained, and therefore where a servant took his master's chaise, which had been broken by› his negligence, to a coach-maker to be repaired, without his master's knowledge, it was ruled that the coach-maker had no right to retain the chaise against the master, for the repairs. Hiscox v. Greenwood, 4 Esp. 174. Evidence of lien-when waived.] A party entitled to a lien may waive it by not insisting upon it when the goods are demanded from him. Boardman v. Sill, 1 Campb. 310 (n). So he may waive it by parting with the possession, as where the goods are taken in execution at his own suit. Jacobs v. Latour, 5 Bingh. 130. Thus where a coach-maker repaired a carriage, and allowed the owner to take it away, it was ruled that he could not retain it for the repairs, when again brought to him. Hartley v. Hitchcock, 1 Stark. 408, and see Jones v. Pearle, Str. 557. So where a bailee of goods who had a lien, delivered them to a carrier on account of the bailor, and afterwards stopped the goods in transitu, and got possession of them again, it was held that the lien did not revive, Sweet v. Pym, 1 East, 4; but it has been held that the lien of an insurance-broker (who has a general lien), revives on repossession of the policy. Whitehead v. Vaughan, Co. Bank. Law, 547, 7th ed. Levy v. Barnard, 8 Taunt. 149. And where horses, on which a livery and stable-keeper had by agreement a lien, were fraudulently taken out of his possession by the owner, it was ruled that the livery stable-keeper, having, without force, retaken the horses, his lien revived. Wallace v. Woodgate, 1 R. and M. 193. Where the owner of a ship, having a lien on the goods, until the delivery of good and approved bills for the freight, took a bill of exchange in payment, and though he objected to it at the time, afterwards negociated it, it was held that such negociation amounted to an approval of the bill by him, and that his lien on the goods was waived. Horncastle v. Farran, 3 B. and A. 497. See Stevenson v. Blake lock, 1 M. and S. 535. Where the seller of goods recovered a verdict for goods bargained and sold, it was ruled by Lord Ellenborough, that he had not thereby waived his lien, though it might have been otherwise had he recovered a verdict for goods sold and delivered. Houlditch v. Desange, 2 Stark. 337. A lien is not destroyed though the demand in respect of which it arises is barred by the statute of limitations. Spears v. Hartley, 4 Esp. 81. Where goods, upon which the captain of a ship has a lien, are deposited in the king's warehouse in pursuance of the requisitions of an act of parliament, the lien is not thereby waived. Per Ld. Kenyon, C. J., Ward v. Felton, 1 East, 512; and see Wilson v. Kymer, 1 M. and S. 167. Although the defendant that another part owner plaintiff, so as to defeat East, 420; yet he may Evidence in mitigation of damages.] cannot under the general issue object of the goods has not been joined as the action, see Bloxam v. Hubbard, give that fact in evidence in order to reduce the plaintiff's da mages to the amount of his own share. Nelthorpe v. Darrington, 2 Lev. 113. In an action by a rightful executor against an executor de son tort, the latter may prove in mitigation of damages, that he has paid debts of the deceased. Whitehall v. Squire, Carth. 104. But where the defendant, who was appointed executor by a prior will, proved it, and after notice of a later will sold certain goods of the testator, it was held that the plaintiff, who was executor under the later will (the probate of the former being revoked), might recover the whole value of the goods so sold, and that the defendant could not give evidence of the due administration of the assets by himself. Woolley v. Clark, 5 B. and A. 744, sed quære. And it is said, that if the payments made by the executor de som tort, amount to the full value of the sum to be recovered in the action of trover, the plaintiff shall be nonsuited, B. N. P. 48 ; but the authority cited for this position does not support it, and it is, as it seems, incorrect. Mountford v. Gibson, 4 East, 2 Phill. Ev. 175. 447; Though a conversion cannot be purged, yet the defendant show, in mitigation of damages, that he has returned the may Countess of Rutland's case, 1 Rol. Ab. 5. goods EVIDENCE IN ACTIONS BY AND AGAINST ACTIONS BY ASSIGNEES OF BANKRUPTS. In an action by the assignees of a bankrupt, the plaintiffs must prove, 1. The bankruptcy, and the plaintiffs' title to sue as assignees, except in certain cases, in which such evidence is dispensed with. 2. The cause of action in the usual manner. Evidence of the bankruptcy under 6 Geo. IV. c. 16, s. 90 and 92.] By 6 Geo. IV. c. 16, s. 92, if the bankrupt shall not (if he was within the United Kingdom at the issuing of the commission) within two calendar months after the adjudication, or (if he was out of the United Kingdom), within twelve calendar months after the adjudication, have given notice of his intention to dispute the commission, and have proceeded therein with due diligence, the depositions taken before the commissioners, at the time of, or previous to the adjudication, of the petitioning creditor's debt or debts, and of the trading, and act or acts of bankruptcy, shall be conclusive evidence of the matters therein respectively contained, in all actions at law, or suits in equity, brought by the assignees for any debt, or demand, for which the bankrupt might have sustained any action or suit. Where there are some counts on causes of action on which the bankrupt might have sued, and others on which he could not, the proceedings under the commission are evidence, if the plaintiffs elect to proceed only on those counts which the bankrupt might have sustained. Jones v. Fort, 1 M. and M. 196. The above section does not apply to commissions anterior to the act. Kay v. Goodwin, 6 Bingh. 576. By the term conclusive evidence in this section, must be understood that no evidence is to be admitted to contradict the depositions, the construction at first put upon Sir S. Romilly's act. Eden, 370. Before the late statute, it was held that the depositions were not conclusive, where on the face of them there did not appear to be a sufficient petitioning creditor's debt, &c. Brown v. Forrestall, Holt, 190, Cooper v. Machin, 1 Bingh. 426; but under the above section it has been decided, that where no notice has been given to dispute a commission, and the proceedings and commission are put in, and there does not appear to be a sufficient petitioning creditor's debt, though there is nothing to disprove such a debt, the commis sion cannot be disputed. Macheath v. Coates, 1 Bingh. 54. Where the petitioning creditor's debt is proved by the deposition, it is not competent for the defendant to prove that the debt was a fraudulent contrivance between the bankrupt and the petitioning creditor. Young v. Timmins, 1 Crom. and Jerv. 148. To make the proceedings evidence it must be shown that they came out of the custody of the solicitor to the commission, or the handwriting of the commissioners must be proved, Collinson v. Hillear, 3 Camp. 30; for which purpose the bankrupt himself, having obtained his certificate and released the surplus, is a competent witness. Morgan v. Pryer, 2 B. and C. 14. As to producing the proceedings, vide ante, p. 64. It is only on actions or suits brought by the bankrupt's own assignees for a debt or demand for which he might have sued, that the depositions are made evidence, and therefore if the assignees of another bankrupt are petitioning creditors, and notice of disputing the petitioning creditor's debt is given, the depositions under the latter commission are not evidence by this section. Muskett v. Drummond, 10 B. and C. 153. See Scaife v. Howard, 2 B. und C. 360, post, p. 417. By 6 Geo. IV. c. 16, s. 90, it is enacted, that in any action by, or against, any assignee, or in any action against any commissioner, or person acting under the warrant of the commissioners, for any thing done as such commissioner, or under such warrant, no proof shall be required at the trial, of the petitioning creditor's debt or debts, or of the trading, or act or acts of bankruptcy, respectively, unless the other party in such action shall, if defendant, at or before pleading, and if plaintiff, before issue joined, give notice in writing to such assignee, commissioner, or other person, that he intends to dispute some, and which of such matters, and in case such notice shall have been given, the judge may certify that the .matter has been proved or admitted, which shall entitle the party to costs. Notice to dispute "the bankruptcy" is too general. It must specify which of the three matters, trading, petitioning creditor's debt, and act of bankruptcy, is intended to be disputed. Trimley v. Unwin, 6 B. and C. 537. Under this section no proof whatever of the petitioning creditor's debt, trading, or act of bankruptcy, is required, unless proper notice has been given. Where the bankrupt was within the United Kingdom at the time of the issuing of the commission, and has given no notice to dispute the com-mission, the effect of the above clause is, that in cases where the bankrupt, if solvent, could have sued, and the defendant gives notice of his intention to dispute the bankruptcy, &c. the fact so disputed must be proved, but the depositions under the commission are conclusive evidence of the matters contained in them. Earith v. Schroder, 1 M. and M. 26. Eden. 370. Where notice has been given only to dispute the act of bankruptcy, and the other side have read the depositions on the file to prove the trading and debt, the residue of the proceedings are not considered to be in evidence, and the counsel of the party contesting the commission has no right to inspect them. Black v. Thorpe, 4 Camph. 191, Stafford v. Clarke, 1 C. and P. 26. The notice is not part of the defendant's evidence in the cause, but may be proved at the commencement of the plaintiff's case, and will immediately put him upon strict proof. Decharmy v. Lane, 2 Campb. 323. Evidence of bankruptcy under 6 Geo. IV. c. 16, s. 90, 92—service of notice.] A notice served by delivering it to a clerk at the defendant's counting-house, before issue joined, without showing that it has come to the defendant's hands, has been held rightly served. Wedger v. Browning, 1 M. and M. 27, 2 C. and P. 523, S. C. If no notice has been delivered with the plea, and the plea is got back, under a false pretence, and redelivered with a notice, it seems to be insufficient. Lawrence v. Crowder, 1 M. and P. 511, 3 C. and P. 229, S. C. See also Folks v. Scudder, 3 C. and P. 232. Service on the attorney is sufficient. Howard v. Ramsbottom, 3 Taunt. 526. Strict proof of title.] Strict proof of the title of the assignees has been dispensed with in cases where the defendant's conduct has been an express or implied admission of their title. Eden, 354, see Maltby v. Christie, 1 Esp. 340, Watson v. Wace, 5 B. and C. 153, Rankin v. Horner, 16 Eust, 191, stated ante, p. 27. Thus, where the defendant had attended a meeting of the commissioners, and exhibited an account between him and the bankrupt, and afterwards made a part payment to the assignee on that account, it was held to be prima facie evidence that the plaintiff was assignee. Dickenson v. Coward, 1 B. and A. 677. So where the defendant on being applied to by the assignee, said he would call and pay the money, this was held to dispense with the usual proofs of the assignee's title. Pope v. Monk, 2 C. and P. 112. And an affidavit that a party is indebted to the deponent in the sum of 100l. and upwards and is become bankrupt, is, as against the deponent, conclusive evidence of the bankruptcy. Ledbetter v. Salt, Bingh. 1 M. and P. 597, S. C., and see supra. Where the assignees are strangers to the record, and their title comes in accidentally, it must be strictly proved in the regular manner. Doe v. Liston, 4 Taunt. 741. But, if parties to the record, though not named assignees, the proceedings will be sufficient evidence, unless notice has been given, if the other party is aware that they make title under the commission. Simmonds v. Knight, 3 Camph. 251, Rowe v. Lant, Gow, 24. Newport v. Hollings, 3 C. and P. 223. So, though there are other defendants on the record, if these defendants |