any interest in the lands (t). And in like manner if the client should be a mortgagor, the solicitor would have no right to retain the deeds as against the prior claim of the mortgagee (u); and if the client should be a trustee, the deeds must be given up for the purposes of the trust (x). This lien also extends only to charges strictly professional (y), and to documents in the possession of the attorney or solicitor in his professional character (z). And a mere certificated conveyancer has no general lien on the documents in his hands (a).

Lien, then, of whatever kind, is merely a right to retain the possession of the goods. This right of possession enables the person who has been in possession by virtue of the lien to maintain an action of trover for the goods (b); but the property in the goods still remains Property of with the owner; and if the person having the lien should fien is in the give up the possession of the goods, his lien will be owner. lost (c); the owner's property in them will draw to it How lien is the right of possession, and enable him to maintain an action of trover (d). And if the person having the lien should take a security for his debt, payable at a distant day, his lien would on that account be lost, as it would be unreasonable that he should detain the goods till such future time of payment (e); and in this case also an action of trover may be maintained by the owner

lost.

of the goods, by virtue of the right of possession now accrued to him in respect of his property (ƒ).

In all the above cases of finding of goods, bailment and lien, it appears clear, therefore, that the property in the goods is still simply vested in one party only, although the right to their immediate possession may be in another party, and the actual possession possibly in a third.

(f) Hewison v. Guthrie, 2 New Cas. 756, 759.

CHAPTER III.

OF THE ALIENATION OF CHOSES IN POSSESSION.

in which a man

property.

CHOSES in possession have always been freely alienable from one person to another. The feudal principles of tenure, which in ancient times opposed the alienation of landed estates, could have no application to the then insignificant subjects of personal property; although the full right of testamentary disposition was not, as we shall hereafter see, enjoyed in early times. But, though A grant cannot the property in personal chattels may be freely aliened, it be made of that is impossible for a man to make a valid grant in law of has no actual that in which he has no actual or potential property, or potential but which he only expects to have. A person who has an interest in land may grant all the fruit which may grow upon it hereafter (a). So a grant of the next year's wool of all the sheep which a man now has is valid, because he has a potential property in such wool (b). But a grant of the wool of all the sheep which a man ever shall have, is void (c). And in the same manner the assignment of a man's stock in trade passes only such articles as are his property at the time he executes such assignment, and will not comprise any other articles which he may afterwards purchase (d); not even if the instrument of assignment should purport to convey all goods which should at any time thereafter be in or upon his dwelling house (e).

(a) Grantham v. Hawley, Hob. 132; Petch v. Tutin, 15 Mee. & Wels. 110.

(b) Per Pollock, C. B., 15 Mee. & Wels. 116.

(c) Com. Dig. tit. Grant (D).

(d) Tapfield v. Hillman, 6 Man. & Gr. 245; S. C. 6 Scott, N. R. 967.

(e) Lunn v. Thornton, 1 C. B. 379; Gale v. Burnell, 7 Q. B. 850.

Ancient mode of conveying real property.

The manner in which the alienation of personal chattels is effected, is in many respects essentially different from the modes of conveying real estate. In ancient times, indeed, there was more similarity than there is at present. The conveyance of land was then usually made by feoffment, with livery of seisin, which was nothing more than a simple gift of an estate in the land, accompanied by delivery of possession (f). This gift might then have been made by mere word of mouth (g); but the Statute of Frauds (h) made writing necessary; and now every conveyance of landed property is reModes of alien- required to be by deed (i). Personal chattels, on the ation of personal chattels. contrary, are still alienable by mere gift and delivery; though they may be disposed of by deed; and they are also assignable by sale, in a manner totally different from the conveyance requisite on the transfer of real estate. Each of these three modes of conveyance deserves a separate notice.

Gift and delivery.

1. And first, personal chattels are alienable by a mere gift of them, accompanied by delivery of possession. For this purpose no deed or writing is required, nor is it essential that there should be a consideration for the gift. Thus, if I give a horse to A. B., and at the same time deliver it into his possession, this gift is complete and irrevocable, and the property in the horse is thenceforward vested in A. B. (k) But if I purport to assign the horse, and yet retain the possession, the gift, though made by writing (so that it be not a deed), is absolutely void at law (1), and equity will give no relief to the donee (m). It may however be observed,

(f) See Principles of the Law of Real Property, 108.

(g) Ibid. p. 113.

(h) Stat. 29 Car. II. c. 3, ss.
1, 2.

(i) Stat. 8 & 9 Vict. c. 106, s. 3.
(k) 2 Black. Com. 441.

(1) Irons v. Smallpiece, 2 Barn. & Ald. 551; Miller v. Miller, 3 P. Wms. 356.

(m) Antrobus v. Smith, 12 Ves. 39, 46; Edwards v. Jones, 1 My. & Cr. 226; Dillon v. Coppin, 4 My. & Cr. 647, 671.

that if the donor should not attempt to part with the Trust though subject of gift, but should declare that he keeps pos- forced in equity. voluntary ensession of it in trust for the donee, equity will seize on and enforce this trust, although voluntarily created (n). In some cases it is not possible to make an immediate and complete delivery of the subject of gift; and in these cases, as near an approach as possible must be made to actual delivery; and if this be done, the gift will be effectual. Thus if goods be in a warehouse, the delivery of the key will be sufficient (o); timber may be delivered by marking it with the initials of the assignee (p), and an actual removal is not essential to the delivery of a haystack (q). But the delivery of a part of goods capable of actual delivery, is not a sufficient delivery of the whole (r).

simple bailee.

When goods are in the custody of a simple bailee, Constructive delivery when such as a wharfinger or carrier, the possession of such goods are in the bailee is, as we have seen (s), constructively the posses- custody of a sion of the bailor; and either the bailor or bailee may maintain an action of trover in respect of the goods. This constructive possession of the bailor may be delivered by him to a third person, by making as near an approach to actual delivery as is possible under the circumstances of the case. By the custom of Liverpool the delivery of goods in another person's warehouse is effected by merely handing over a delivery order (t); and the property in wines in the London Docks ap- Dock warrant. (9) Chaplin v. Rogers, 1 East,

(n) Ellison v. Ellison, 6 Ves. 656; Ex parte Dubost, 18 Ves. 140, 150.

(o) West v. Skip, 1 Ves. sen. 244; Ryall v. Rowles, 1 Ves. sen. 362; 1 Atk. 171; Ward v. Turner, 2 Ves. sen. 443.

(p) Stoveld v. Hughes, 14 East, 308.

190.

(r) Per Pollock, C. B., 14 Mee. & Wels. 37, correcting a dictum of Taunton, J., 2 Ad. & El. 73.

(s) Ante, p. 25.

(t) Dixon v. Yates, 5 Barn. & Adol. 313; and see Greaves v. Hepke, 2 Barn. & Ald. 131.

D