has no lien on title deeds for costs due to him from the mortgagor, Chap. II. unless such lien be expressly given.1 A solicitor who has prepared a marriage settlement upon the instructions of the husband has no lien upon it as against the trustees.2 3 The solicitor may lose his lien by taking security for his costs; Taking but "whether a lien is waived or not by taking a security depends security. upon the intention, expressed or to be inferred from the position of the parties and all the circumstances of the case "; and where a solicitor, whose duty it is to give his client clear information as to the facts and to advise him of his rights and liabilities, takes a security for costs without explaining that he intends to reserve his lien, the presumption is that the lien is abandoned.5 If the client discharges the solicitor, or becomes bankrupt, the Discharge of solicitor may decline to give access to the papers over which he has a lien till he is paid; but if the solicitor discharges himself during the progress of an action, he may be ordered to give up the papers to the new solicitors, on their undertaking to hold them without prejudice to his lien, and to return them undefaced, and to allow him to have access to them for the purpose of bringing an action for his costs.7 8 solicitor. It is sometimes said that the general lien of a factor, and the Lien on sale particular lien of an auctioneer, on goods placed in his possession moneys. for the purposes of sale extends to the purchase-money of goods sold by him, and delivered to the purchaser. The explanation appears to be that, in the supposed cases, the factor or auctioneer has a right to have the purchase-money paid to him; and, on his acquiring possession of that money, his lien attaches. It is rather an abuse of language to say that the lien attaches on the purchase-money before it is paid, for, if the purchaser pays the principal, the remedy of the factor or auctioneer is not against 1 Re Snell, 6 Ch. D. 105: distinguished in Macfarlane v. Lister, 37 Ch. D. 88, and Brunton v. Electrical Corporation, [1892] 1 Ch. 434. 2 Re Lawrance, [1894] 1 Ch. 556. Balch v. Symes, T. & R. 92; 23 R. R. 195; Cowell v. Simpson, 16 Ves. 275; 10 R. R. 181. Per Lindley, L.J., Re Taylor, sup. ; ante, p. 32. Per Kay, L.J., Re Taylor, sup. ; Re Douglas Norman & Co., [1898] 1 Ch. 199. Exp. Underwood, De G. 190; Re 325. Robins v. Goldingham, 13 Eq. 440. 9 Williams v. Millington, 1 H. Bl. 81 ; 540. Chap. II. the principal to enforce a lien but against the purchaser to make him pay. 4 5 Other classes of persons who have general liens are bankers,1 wharfingers, stockbrokers,3 policy brokers, dyers, cotton printers, and packers. The lien of an unpaid seller is fully dealt with in a later chapter.8 1 Davis v. Bowsher, 5 T. R. 488; 2 R. R. 650; Brandao v. Barnett, 3 C. B. 519, 530; Misa v. Currie, 1 App. Cas. 569; New London, &c. Bank v. Brocklebank, 21 Ch. D. 302. See Re Bowes, 33 Ch. D. 586. 109; 5 2 Naylor v. Mangles, 1 Esp. 3 Re London and Globe Corp., [1902] Ch. 416. 4 Fisher v. Smith, 4 App. Cas. 1. 5 Savill v. Barchard, 4 Esp. 53. 6 Weldon v. Gould, 3 Esp. 268; R. R. 832. 7 Re Witt, 2 Ch. D. 489. 8 Post, Ch. IV., p. 61. CHAPTER III. SALE OF GOODS. THE property in corporeal chattels can be transferred by act Chap. III. inter vivos in the several manuers following: Transfer of goods. (1) By delivery of possession with intent to pass the ownership; property in (2) By a contract for sale called a bargain and sale, or a sale and delivery;1 (3) By the indorsement and delivery of the bill of lading of goods on board ship; 2 3 (4) By deed or instrument in writing called a "bill of sale.' As a general rule, a man cannot transfer the ownership of goods Nemodat unless he is the owner of them, and a buyer obtains no better on title to them than the seller has. This rule is subject to some Exceptions : exceptions, viz. — 1 5 habet. (1) Current coin, if passed as coin, and negotiable instru- Negotiable ments; 7 instruments; (2) The owner of the goods may by his conduct preclude him- Estoppel : self from denying the authority of the seller to sell.8 Serjeant Manning, in a learned note to Bailey v. Culverwell (2 M. & Ry. 566, 1.), expresses an opinion that the rule that the property passes by the bargain and sale without delivery is modern, and that it is an anomaly arising from the assumption that, because the thing sold is at the risk of the purchaser, therefore it belongs to him; and he cites Y. B. 17 Edw. 4, 1 and 2, pl. 2. This note is discussed in Blackburn on Sale, p. 26, where it is pointed out that Serjeant Manning misunderstood the case (see 1 Plow. 11 a). In Wortes v. Clifton 1 Rolle, Rep. 61), Coke says that by the civil law a gift (done, which does not necessarily imply a want of consideration) of goods is not good without delivery, otherwise by our 2 Post, p. 69. 3 Post, p. 94. 4 Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), s. 21 (1). See Hartop v. Hoare, 3 Atk. 49; per Willes, J., Whistler v. Forster, 14 C. B. N. S. 257; Cundy v. Lindsay, 3 App. Cas. 459: Cole v. N. W. Bank, L. R. 10 C. P. 362; Hollins v. Fowler, L. R. 7 H. L. 757. Higgs v. Holiday, Cro. Eliz. 746; post, p. 165. 6 Moss v. Hancock, [1899] 2 Q. B. 111. 7 Post, p. 165. 8 Sale of Goods Act, 1893, s. 21 (1). Chap. III. Factors; Sellers and buyers in possession; Power of sale; Market overt. A case falls under this exception where the owner makes some statement or does some act with reference to the goods, with the intention of inducing and so as to induce the buyer, being a reasonable person, to act on the belief that he acquires, or has acquired, a good title to the goods, so as to alter his previous position.1 (3) Sales by factors and mercantile agents; 2 (4) Sales by persons who remain in possession of goods, or of the documents of title to goods, which they have previously sold to another; or by a person who has bought or agreed to buy goods and has obtained possession of the goods or the documents of title thereto; 3 (5) Where a person, who is not the owner of goods, sells them under a common law or statutory power of sale, or under the order of a court of competent jurisdiction.* (6) Sale in market overt, according to the usage of the market, to a buyer who does not know of the defect in the title of the seller. Blackstone says:-6 "Market overt (that is 'open') in the country is only held on the special days provided for particular towns by charter or prescription;7 but in London [i.e., the City of London] every day, except Sunday, is market day. The market place, or spot of ground set apart by custom for the sale of particular goods, is also in the country the only market; but in [the City of] London every shop in which goods are exposed publicly 1 Pickard v. Sears, 6 A. & E. 469; 45 R. R. 538; Freeman v. Cooke, 2 Ex. 654; Knights v. Whiffen, L. R. 5 Q. B. 660; Duchess of Kingston's Case, 2 Sm. L. C. 848, notes. See Pollock on Contracts, 523. 2 Ante, p. 36; post, p. 77; Sale of Goods Act, 1893, s. 21 (2a); Factors Act, 1889, s. 2. 3 Sale of Goods Act, 1893, s. 25; Factors Act, 1889, ss. 8, 9; pest, p. 78. 4 Sale of Goods Act, 1893, s. 21 (2b). As to pawnee, see ante, p. 28, post, p. 68; as to sheriff, see post, p. 68; as to County Court bailiff, see Goodlock v. Cousins, [1897] 1 Q. B. 558, and Crane v. Ormerod, [1893] 2 K. B. 37; as to master of ship, see notes to The Gratitudine, Tudor, L. C. Merc. Law, and post, p. 118; as to sale by order of the Court, see Ord. L., r. 2; Ord. LVI., r. 12. 5 As to markets by charter or prescription, see Elph. N. & C. Interp. 595; A.-G. v. Horner, 14 Q. B. D. 245; 11 App. Cas. 66; Goldsmid v. G. E. R., 9 App. Cas. 927; and, as to statutory markets, Manchester v. Lyons, 22 Ch. D. 287; Abergavenny v. Straker, 42 Ch. D. 83. 6 2 Bl. 449. See 2nd Instit. 713. 7 This does not apply to a market recently established under a local Act; Moyce v. Newington, 4 Q. B. D 34. * Including warehouses; Lyons v. De Pass, 11 A. & E. 326; but not wharves; Wilkinson v. King, 2 Camp. 335. 9 Lyons v. De Pass, 11 A. & E. 326. A sale in a back room or upstairs showroom is not in market overt; Palmer v. Wolley, Cro. Eliz. 454; Hargreave v. Spink, [1892] 1 Q. B. 25. to sale, is market overt for such things only as the owner professes to Chap. III. trade in. But if my goods are stolen from me and sold out of market overt, my property is not altered, and I may take them wherever I find them..... And even in market overt, if the goods be the property of the king, such sale (though regular in all other respects) will in no case bind him, though it binds infants, femes covert, idiots or lunatics, and men beyond sea or in prison; or if the goods be stolen from a common person and then taken by the king's officer from the felon and sold in open market; still, if the owner has used due diligence in prosecuting the thief to conviction, he loses not his property in the goods. So likewise if the buyer knoweth the property not to be in the seller, or there be any other fraud in the transaction; if he knoweth the seller to be an infant, or feme covert, not usually trading for herself; if the sale be not originally and wholly made in a fair or market, or not at the usual hours, the owner's property is not bound thereby. If a man buys his own goods in a fair or market, the contract of sale shall not bind him so that he shall render the price, unless the property had been previously altered by a former sale. And, notwithstanding any number of intervening sales, if the original vendor, who sold without having the property, comes again into possession of the goods, the original owner may take them when found in his hands who was guilty of the first breach of justice. By which wise regulations the common law has secured the right of the proprietor in personal chattels from being divested so far as was consistent with that other necessary policy; that purchasers bona fide, in a fair, open and regular manner, should not be afterwards put to difficulties by reason of the previous knavery of the seller." In the case of stolen goods, notwithstanding the sale was in Stolen goods. market overt, the property will, by virtue of the Larceny Act, 1861,3 and the Sale of Goods Act, 1893, re-vest in the true owner upon his prosecuting the thief to conviction, and at the date of conviction, so that the goods must be restored even by a bona fide purchaser for value. If stolen goods are sold otherwise than in market overt, the true owner can recover them from an innocent purchaser without prosecuting the thief." The Larceny Act, 1861,7 provides that "If any person guilty of any such felony or misdemeanour as is Larceny Act, 1 Case of Market Overt, 5 Rep. 83b; Tudor, L. C. Merc. Law, 274; Com. Dig. Market, E. Whether a sale to the shopkeeper is protected is doubtful; Hargreave v. Spink, sup. 2 Clifton v. Chancellor, Moore, 624; Harry v. Facy, 2 And. 115; so a sale by sample has not the privilege of market overt; Crane v. London Dock Co., 5 B. & S. 313. 3 24 & 25 Vict. c. 96, s. 100. 5 Lindsay v. Cundy, 1 Q. B. D. 348. 7 24 & 25 Vict. c. 96, s. 100; Sum- 1861. |