A. to cut the remainder. A. may exercise his lien over the rest of the 2. A. sells to B. goods then lying at the wharf of C. C. afterwards 3. A. sells to B. forty-six puncheons of rum lying in C.'s warehouse. On B.'s request for a delivery order, A. gives B. delivery orders for two puncheons only, which are then delivered to a purchaser from B. A. can exercise his lien over the remaining forty-four puncheons. Dixon v. Yates (1833), 5 B. & Ad. 313. 4. A. sells to B., for 7987., payable by bill, a quantity of bacon then lying at C.'s wharf, and leaves an order with C. to deliver to B. B. weighs the whole of the bacon, and takes away twenty-five bales. B. then becomes bankrupt. The part delivery to B. divests A.'s lien, as it appears from the facts-viz., B. having taken possession of the whole of the bacon for the purpose of weighing, the price being entire, and C.'s assenting to B.'s acts-that C. had consented to become bailee of all the bacon. Hammond v. Anderson (1803), 1 B. & P. N. R. 69 (ƒ). S. 42. 43.-(1.) The unpaid seller of goods loses his lien Termination or right of retention thereon (a) When he delivers the goods to a carrier or (b) When the buyer or his agent lawfully obtains (c) By waiver thereof. (2.) The unpaid seller of goods, having a lien or right of retention thereon, does not lose his lien or right of retention by reason only that he has obtained judgment or decree for the price of the goods. of lien. When he delivers the goods to a carrier, &c.-"A delivery of S. 43 (1) (a). the goods to a common carrier for conveyance to the buyer is such a delivery of actual possession to the buyer, through his agent, the carrier, as suffices to put an end to the seller's lien" (g). The case is therefore only an illustration of the (ƒ) As explained in Ex parte Cooper and Ex parte Falk, note (d) on preceding page; and per Parke, J., in Bunney v. Poyntz (1833), 4 B. & Ad. G. at p. 571. (g) Benj. p. 813, and the authorities cited in the note in loc. S. 43 (1) (a). following clause, sub-s. (1) (b). The law relating to delivery to a carrier has been already stated in s. 32, ante, p. 198. Seller does not lose lien when carrier By the term "carrier," though spoken of in general terms, is doubtless meant, as before the Act, a carrier, being the buyer's is his agent. agent. If he be the seller's agent, the seller, having possession, would naturally not lose his lien. In such a case the seller would seem to "reserve the right of disposal" under this clause. On this Lord Blackburn makes the following remarks: Effect of shipment upon the seller's lien. "It is very usual for a vendor to reserve to himself by the terms of the contract of sale, and of the contract which he makes with the carrier, a right to prevent or delay the delivery of the goods to the purchaser until some conditions are fulfilled. When this is the case the solvency of the purchaser is beside the question; neither he nor his representatives have any right to take possession until the conditions are fulfilled, or are waived by the vendor. When the conditions are binding, the case is not one of stoppage in transitu, but rather a case in which the particular circumstances have prevented the transitus ever commencing, as the carrier, instead of being an agent to forward from the vendor to the buyer, has agreed to be an agent to keep possession for the vendor until the conditions are fulfilled" (i). See further, the notes below on the effect of these words. ... The lien, when lost by delivery to a carrier, may, of course, be revested under s. 44 by stoppage in transit. Or other bailee.-As the "other bailee" must be one "for the purpose of transmission to the buyer," the term must have been intended, ex majori cautelá, to be synonymous with "carrier," or to include cases where the carrier temporarily warehouses the goods in the course of transit. The case of a warehouseman or wharfinger to hold possession apart from transit is dealt with in the following clause (b). Custodier. This is a Scotch term, and is also included under the term "bailee" by s. 62 (1), post. Without reserving the right of disposal.-When goods are carried by sea, the effect upon the seller's lien, of delivery of the goods on board ship, depends upon the seller's intention at the time of shipment to transfer to the buyer the possession of the goods. The seller may intend to reserve his right of disposal of the goods, and may effectuate that intention by taking the bill of lading to his own order or assigns under s. 19 (2), and so restrict the effect of delivery. Shipment, when a bill of lading (i) Blackb. p. 380. is taken, is not a delivery to the buyer, but to the master of the S. 43 (1) (a). ship, as bailee, to deliver to the person indicated in the bill of lading (k). It follows that delivery on board the buyer's own ship, whether it be a general ship, or one sent specially for the goods, when the seller does not restrict the delivery by the form of the bill of lading, or otherwise, is a delivery to the master of the ship, not as carrier, but as the buyer's agent (1), and the seller's lien is lost under sub-s. (1) (b), next following. The shipment is not complete until the bill of lading has been taken (m), and, prior thereto, the shipper's intention as to the effect of the delivery may be inferred from the terms of the ship's receipt for the goods (n). When the seller takes a bill of lading making the goods deliverable to his own order, or assigns, that is prima facie evidence that he intends to retain control over the goods, and his lien will not be lost. (See s. 19 (2).) But when the goods have been shipped, and the seller has taken a bill of lading to the order of the buyer, or has duly indorsed the bill of lading to him, then the shipment is equivalent to delivery of possession of the goods and the seller's lien is gone. "A cargo at sea, while in the hands of the carrier, is necessarily incapable of physical delivery. During the period of transit and voyage, the bill of lading by the law merchant is universally recognized as its symbol, and the indorsement and delivery of the bill of lading operate as a symbolical delivery of the cargo" (o). Generally, as to the seller's reservation of the jus disponendi, or "right of disposal" of the goods, see s. 19, ante, p. 136, and Benj. pp. 345-371. ILLUSTRATIONS. 1. A. agrees to sell goods to B. free on board a ship, and delivers them on board and takes a receipt in his own name, being thereby entitled to demand the bill of lading. A. has not lost his lien, as he has reserved the right of disposal of the goods. Craven v. Ryder (1816), 6 Taunt. 433 (p). (k) Per Parke, B., in Wait v. Baker (1848), 2 Ex. 1. (1) Turner v. Trustees of the Liverpool Docks (1851), 6 Ex. 543; 20 L. J. Ex. 394; Schotsmans v. Lancashire & Yorkshire Ry. Co. (1867), 2 Ch. Ap. 332; and see s. 45 (1), p. 239, as to the effect of such a delivery on the seller's right of stoppage in transitu. (m) Per Bramwell, B., in Gabarron v. Kreeft (1875), L. R. 10 Ex. at p. 281. (n) Craven v. Ryder (1816), 6 Taunt. 433; Falk v. Fletcher (1865), 18 C. B. N. S. 400. (0) Per Bowen, L.J., in Sandars v. Maclean (1883), 11 Q. B. D. at P. 341. (p) See also Ruck v. Hatfield (1822), 5 B. & A. 632, where the seller demanded a receipt which was not given. Aliter, if the ship belongs to the buyer: Cowasjee v. Thompson (1845), 5 Moo. P. C. 165. S. 43 (1) (a). S. 43 (1) (b). (1) Abandonment of lien. (i) Goods in seller's possession. 2. A. sells goods to B., and delivers them on board B.'s general ship, and takes the bill of lading to the order of B. This is a delivery (without a reservation of the right of disposal) by A. to the master of the ship as carrier or agent for B., and A. has lost his lien. Schotsmans v. L. & Y. Ry. Co. (1867), 2 Ch. Ap. 332. When the buyer or his agent lawfully obtains possession.The possession must be obtained lawfully. It is apparently otherwise in the case of stoppage in transitu (see notes to s. 45 (2), post, p. 245). The seller may lose his lien (1) by abandonment, or (2) by waiver. He abandons his lien by parting with the possession of the goods to the buyer or his agent; he waives his lien when, without parting with possession, he shows his intention at the time of the formation of the contract not to retain possession until payment of the price. The seller's waiver of his lien is discussed under clause (c), post, p. 232. It will be found convenient, in treating of the different modes by which the seller may abandon his lien, to classify them with regard to the situation of the goods at the time of the contract. (i) Goods in the seller's possession. This is the ordinary case, and the modes by which delivery of possession may be effected are so various as to justify the remark that "it is difficult to select those leading principles which are sufficient to carry us safely through the labyrinth of cases that overwhelm and oppress this branch of the law" (q). The simplest mode is for the buyer to send his own cart, barge or ship for the goods, and either himself or by his agent to remove the goods out of the seller's possession by receiving them in the cart, barge or ship (r). Another mode is for the seller to deliver the goods to a carrier for transmission to the buyer under sub-s. 1 (a), supra. Apart from these obvious modes, possession of goods may be delivered in various ways according to circumstances. Speaking generally, the same acts which amount to an "actual receipt" of the goods within the meaning of s. 4 will constitute a delivery of possession to divest the seller's lien (s), so that the inquiry on this point has been anticipated (ante, pp. 36-40). But there is one excep❤ tion in the case where the seller in possession agrees to retain possession of the goods as bailee for the buyer. This change in the character of the possession constitutes an "actual receipt" by (2) 2 Kent's Comm. 510 (ed. 1873), cited in Benj. 813. (r) See, however, on this the remarks of Jessel, M.R., in Merchant Banking Co. v. Phoenix Bessemer Steel (s) Per Cur., in Cusack v. Robinson (1861), 1 B. & S. 299. the buyer under s. 4, but is not a delivery of possession effectual S. 43 (1) (b). to divest the seller's lien (t). Conversely, the buyer may take possession as bailee for the Buyer obtainseller, and it has been held that the seller's rights are not ing possession determined (u). clause as seller's bailee, and In spite of the generality of the terms employed, there is, it is effect of this submitted, no change of the law effected with regard to this latter thereon. class of cases. When the buyer obtains actual possession of the goods, as the seller's bailee for a special purpose, the transaction may be looked at in several ways: (1) that the buyer's possession is not such a possession as is contemplated by clause (b). This appears to be the view of Lord Blackburn (v) and Mr. Campbell (w), the latter of whom states broadly his opinion that there is no transfer of possession at all, on the authority of Tempest v. Fitzgerald, and Reeves v. Capper, infra (u); and Lord Blackburn says, with regard to the former case, that the buyer there had no right to take away the horse. Perhaps the word "lawfully" was inserted in the clause to include such a case. (2) That the agreement constituting the bailment may be an agreement under s. 55 negativing the seller's liability to lose his lien; and (3) that by the agreement the seller may have reserved to him, not a lien properly so called, but such a special interest or property as is referred to in Dodsley v. Varley (x), i.e., "independent of actual possession, and consistent with the [general] property being in the buyer." In the latter case the seller's interest would not be dealt with by this clause at all, but would be preserved as a common law rule by s. 61 (2). Under very similar circumstances the co-owner of a box, who was by agreement entitled to the possession of it, was held by that agreement to have a special property in the other co-owner's half of the box, independent of the latter's temporary possession as special bailee (y). marking or A delivery of possession is not effected by the "mere marking Possession not of the goods in the buyer's name, or setting them aside, or changed by boxing them up by the buyer's orders, and putting his name packing on them, so long as the seller holds the goods, and has not goods. agreed to give credit for them" (z); but it is otherwise when (t) See notes to s. 41 (2), ante, p. 222. Townley v. Crump (1836), 4 A. & E. 58; and cf. Elmore v. Stone (1809), 1 Taunt. 458; Benj. pp. 771, 812. (u) Reeves v. Capper (1838), 5 B. N. C. 136; Tempest v. Fitzgerald (1820), 3 B. & A. 680. (v) Blackb. p. 30. (w) On Sale (1st ed.), p. 346. 2 Q. B. 202; 61 L. J. Q. B. 709, |