is simply declared by the Act.

sion the goods of his debtor until the debt is paid." Fishell v. Morris, 57 Conn. 547, 551.

7. Owens v. Weedman, 82 Ill. 409; Milliken v. Warren, 57 Me. 46; Morse v. Sherman, 106 Mass. 430; Haskins v. Warren, 115 Mass. 514; S. W. Freight & Cotton Compress Co. v. Standard, 44 Mo. 71; Clark v. Draper, 19 N. H. 419; Tuthill v. Skidmore, 124 N. Y. 148; Wanamaker v. Yerkes, 70 Pa. St. 443; Curtin v. Isaacson, 36 W. Va. 391; Bohn Mfg. Co. v. Hynes, 83 Wis. 388; 2 Mechem on Sales, § 1471; Benjamin on Sales, § 769, 796.

66 As the rule of law is that in a sale of goods, where nothing is specified as to delivery or payment, the vendor has the right to retain the goods until payment of the price. Miles v. Gorton, 2 C. & M. 504. He has in all cases at least a lien unless he has waived it." Benjamin on Sales, § 796.

a

"For what is a lien? What is its nature and operation? It is a French word, and originally signifies string, tie or band, and in the metophorical sense in which the law uses it, it signifies such hold or claim upon a thing, for the satisfaction of a debt, duty or demand, as that it cannot be taken away until the same be satisfied and paid. It is in this sense properly applicable, and I believe originally, in our books, only applied to chattels, things movable, and easily passing from hand to hand; and with respect to these, this claim which one has upon them is metaphorically called a lien, a string, which binds them fast and holds them in his possession." Stansbury v. Patent Cloth Mfg. Co., 5 N. J. L. 433, 441.

8. Bloxam v. Sanders, 4 B. & C. 941; 1 Jones on Liens, § 802.

"When the price of goods sold on credit is due and unpaid, and the vendee becomes insolvent before obtaining possession of them, the vendor's right to the property is often called a lien, but it is greater than a lien. In the absence of an express power, the lienor usually cannot transfer the title to the property on which the lien exists by a sale of it to one having notice of the extent of his right; but he must proceed by foreclosure. When a vendor rightfully stops goods in transitu or retains them before transitus has begun, he can by a sale made on notice to vendee vest a purchaser with a good title. Dustan v. McAndrew, 44 N. Y. 72. His right is very nearly that of a pledgee with power to sell at private sale in case of default. Bloxam v. Sanders, 4 B. & C. 941; Bloxam v. Morley, 4 B. & C. 951; Millgate v. Kebble, 3 M. & G. 100; Oudenreid v. Randall, 3 Cliff. 99, 106." Tuthill v. Skidmore, 124 N. Y. 148, 153, 154.

“The plaintiff (seller) had not what is commonly called a lien, determinable on the loss of possession, but a special interest, sometimes but improperly called a lien, growing out of his original ownership, independent of the actual possession and consistent with the property being in the defendant (buyer). This he retained in respect of the term agreed on that the goods should not be removed to their ultimate place of destination before payment; but this lien is consistent, as we have stated, with the possession having passed to the buyer, so that there may have been a delivery to and actual receipt by him." Dodsley v. Varley, 12 A. & E. 632, 634.

9. Arnold v. Delano, 58 Mass. (4 Cush.) 33; Ware River R. R. Co. v. Vibbard, 114 Mass. 447; Safford v. McDonough, 120 Mass. 290; Burke v. Dunn, 117 Mich. 430; Crummey v. Raudenbusch, 55 Minn. 426; S. W. Freight Co. v. Standard, 44 Mo. 71; S. W. Freight Co. v. Plant, 45 Mo. 517; Robinson v. Morgan, 65 Vt. 37; Curtin v. Isaacsen, 36 W. Va. 391.

"The term lien imports that by the contract of sale and a formal, symbolical or constructive delivery, the property has vested in the vendee; because no man can have a lien on his own goods." Arnold v. Delano, 58 Mass. (4 Cush.) 33.

The property may well be in the buyer though the right of possession, of lien for the price, is in the seller. There could, in fact, be no such lien without a change of ownership. No man can be said to have a lien in the proper sense of the term upon his own property and the seller's lien can only be on the buyer's property." Goddard v. Binney, 115 Mass. 450, 456.

In such cases, though the general property in the goods is vested in the purchaser, the lien or special property is vested in the vendor. Hodgson v. Loy, 7 T. R. 440; Hinde v. Whitehouse, 7 East, 538, 558." Jordan, Ellis & Co. v. James, 5 Ohio, 88.

10. Obermier v. Core, 25 Ark. 562; McNail v. Ziegler, 68 Ill. 224; Oakes v. Moore, 24 Me. 214, 219; Parks v. Hall, 19 Mass. (2 Pick.) 206; Arnold v. Delano, 58 Mass. (4 Cush.) 33, 39; Pickett v. Bullock, 52 N. H. 354; Bowen v. Burk, 13 Pa. St. 146; Welsh v. Bell, 32 Pa. St. 12; Gay v. Hardeman, 31 Tex. 245; Thompson v. Wedge, 50 Wis. 642; 2 Mechem on Sales, 1474.

"To the common law idea of a lien it is necessary that the creditor should have the actual possession of the goods over which the lien is claimed

and that the debt should have been incurred in respect to the very goods detained. As possession is the foundation of the common law lien, any parting with the possession operates as a waiver or forfeiture of it. A lien is a mere right to retain possession of a chattel, which right is immediately lost on the possession being parted with.' Cockburn, C. J., in Donald v. Suckling, L. R. 1 Q. B. 586, 612. Case of an Hostler, Yelverton, 67, note; Pinney v. Wells, 10 Conn. 115." Fishell v. Morris, 57 Conn. 547, 551.

While the seller's lien is dependent upon possession, yet it is not extinguished by a wrongful and fraudulent disposition of the property. The change of possession must be voluntary to constitute a change of possession. McGill v. Chilhowee Lumber Co., 111 Tenn. 552, 559. Citing Caldwell v. Tutt, 78 Tenn. (10 Lea) 258, 259.

The possession of bailee is possession of vendor. 2 Mechem on Sales, § 1493; Jones on Liens, § 829; Benjamin on Sales, § 803; Harman v. Anderson, 2 Camp. 243; Bental v. Burn, 3 B. & C. 423; Lackington v. Atherton, 7 M. & G. 360; Farina v. Home, 16 M. & W. 119; Godts v. Rose, 17 C. B. 229; Bill v. Bament, 9 M. & W. 36; Lucas v. Dorrien, 7 Taunt. 278; Woodley v. Coventry, 2 H. & C. 164.

In the absence of express stipulation, the vendor has no lien on goods already in the vendee's possession. 2 Mechem on Sales, § 1491; Benjamin on Sales, § 802; Jones on Liens, § 813; Warden v. Marshall, 99 Mass. 305; Linton v. Butz, 7 Pa. St. 89; Edan v. Dudfield, 1 Q. B. 302.

Nor where vendee has changed character of goods. Arnold v. Delano, 58 Mass. (4 Cush.) 33; Douglas v. Shumway, 79 Mass. (13 Gray) 498 (wood).

livery of the goods under a contract of sale; or a lien may be acquired for advances by a mere possession, under a contract for that purpose. But it is of the very essence of a lien that possession accompanies it." Jordan, Ellis & Co. v. James, 5 Ohio, 88, 98.

"The delivery of the key of the vendor's warehouse to a purchaser, the paying storage for the goods, or the lodging an order with the keeper for their delivery, or the demand and moving the goods by the agent of the vendee, have been held a sufficient delivery to take away the right to stop. Ellis v. Hunt, 3 T. R. 464, 468; Hurry v. Mangles, 1 Camp. 452; Harman v. Anderson, 2 Camp, 243; Stoveld v. Hughes, 14 East, 308. The securities are at an end if the goods are placed under the order of the consignee at any intermediate place. Dixon v. Baldwin, 5 East, 175." Jordan, Ellis & Co. v. James, 5 Ohio, 88, 98.

Marking and setting aside the goods is not sufficient delivery to release the seller's lien. Dixon v. Yates (1833), 5 B. & Ad. 313; Proctor v. Jones, 2 C. & P. 532.

Selecting, weighing and measuring for purpose of identification is not such a delivery as to defeat the seller's lien. Thompson v. B. & O. R. R. Co., 28 Md. 396.

11. 2 Mechem on Sales, § 1475; Benjamin on Sales, § 796; 1 Jones on Liens, § 804.

12. As warehouse charges (Benjamin on Sales, § 796), dock charges (Somes v. British Empire Shipping Co., E. B. & E. 353, 8 H. L. Cas. 338, 27 L. J. Q. B. 397, 30 L. J. Q. B. 229), or demurrage (Whiting v. Sullivan, 7 Mass. 107; Earle v. Coburn, 130 Mass. 596; Putnam v. Glidden, 159

Mass. 47; Crommelin v. N. Y. & Harlem R. R. Co., 4 Keyes [N. Y.], 90; East Tenn. R. R. Co. v. Hunt, 83 Tenn. [15 Lea] 261.

"But this lien extends only to the price. If, by reason of the vendee's default, the goods are kept in warehouse, or other charges are incurred in detaining them, the lien does not extend to such claim, and the vendor's remedy, if any, is personal against the buyer." Benjamin on Sales, § 796.

13. Robinson v. Morgan, 65 Vt. 37; 2 Mechem on Sales, § 1476.

"It is one of the characteristics of common law liens which arise, upon considerations of justice and policy, by operation of law, as distinguished from liens created by contract or statute, that the former, as a general rule, attach to the property itself without any reference to ownership, and override all other rights in the property, while the latter are subordinate to all prior existing rights therein." Sullivan v. Clifton, 55 N. J. L. 324, 326.

66

The vendee having become insolvent and refused payment of the notes given for the purchase price of the property, which remained in the vendor's possession, his right to retain it as security for the price was revived as against the vendee, and his attaching creditor. Arnold v. Delano, 4 Cush. 33; Haskell v. Rice, 11 Gray, 240; Milliken v. Warren, 57 Me. 46; Clark V. Draper, 19 N. H. 419; Bloxam v. Sanders, 4 B. & C. 941; Bloxam v. Morley, id. 951; Hamburger v. Rodman, 9 Daly (N. Y.), 93." Tuthill v. Skidmore, 124 N. Y. 148, 154.

14. 1 Jones on Liens, § 857.

15. McElwee v. Metropolitan Lumber Co., 69 Fed. R. 302; Rowley v. Bigelow, 29 Mass. (12 Pick.) 307; Arnold v. Delano, 58 Mass. (4 Cush.) 33; Babcock v. Bonnell, 80 N. Y. 244; Martindale v. Smith, 1 Q. B. 389.

16. Dustan v. McAndrew, 44 N. Y. 72, 78; Hayden v. Demets, 53 N. Y. 426, 431; Smith v. Pettee, 70 N. Y. 13, 18; Mason v. Decker, 72 N. Y. 595, 599; 2 Mechem on Sales, § 1670 et seq; Benjamin on Sales, § 788.

17. Dustan v. McAndrew, 44 N. Y. 72; Van Brocklin v. Smeallie, 140 N. Y. 70; Tuthill v. Skidmore, 124 N. Y. 148; 2 Mechem on Sales, § 1622; Benjamin on Sales, § 782, 788.

66

In most instances in which one has such a lien, if the debt or duty be not paid upon reasonable request and within reasonable time, the party himself may sell the chattel so held, without the intervention of any judicatory, as in the case of pledges, etc." Stansbury v. Patent Cloth Mfg. Co., 5 N. J. L. 433, 441.

18. Sullivan v. Park, 33 Me. 438; 2 Mechem on Sales, § 1620; 1 Jones on Liens, §§ 94, 805.

19. Dustan v. McAndrew, 44 N. Y. 72; 2 Mechem on Sales, § 1682; Benjamin on Sales, §§ 782, 788. But see Blackburn on Sales, p. 325.

20. See sec. 60, post.

21. Rucker v. Donovan, 13 Kan. 251.

"The right of stoppage in transitu is the right of the vendor to resume possession of the goods sold while they are in transit to the vendee, who is insolvent, or in embarrassed cir

cumstances. Actual insolvency of the vendee is not essential. It is sufficient if before stoppage in transitu, he was either in fact insolvent, or had, by his conduct in business, afforded the ordinary apparent evidences of insolvency. Nor is the vendor's right abridged, or in any way affected by the fact that he has received the vendec's bills of exchange, or other negotiable securities for the whole price, even though they have been negotiated and are still outstanding." Diem v. Koblitz, 49 Ohio St. 41, 51.

22. Loeb v. Peters, 63 Ala. 243, 249; Grout v. Hill, 70 Mass. (4 Gray) 361; Atkins v. Colby, 20 N. H. 154; Babcock v. Bonnell, 80 N. Y. 244, 251; White v. Welsh, 38 Pa. St. 396, 420; Ellis v. Hunt, 3 T. R. 464, 469; 2 Mechem on Sales, § 1526; Benjamin on Sales, § 828; Jones on Liens, § 857.

"This right is nothing more than an extension of the lien, which the vendor has on all sales for the price, until after the delivery to the very point of the goods coming into the actual custody of the vendee or his agent." Morris v. Shryock, 50 Miss. 590.

Courts look with great favor upon the right of stoppage in transitu on account of its intrinsic justice. Cassaboglow v. Gibb, 11 Q. B. D. 804; Kemp v. Falk, 7 App. Cas. 573, 590; Tucker v. Humphrey, 4 Bing. 516, 519; Gibson v. Carruthers, 8 M. & W. 321, 337; Rogers v. Thomas, 20 Conn. 53, 66.