the broker, such as a declaration by a British subject in time of war that the property is neutral(p), or a statement that the insurance is to be effected "for a correspondent in the country "(q), or that the property to be insured belongs to a merchant abroad who has consigned it to the agent with full power of disposition over it, and with authority to indorse the bill of lading(r), the broker will have a lien only for his commission and charges for the insurance, and not for the balance due to him from the agent.

626 Extinguishment of liens by abandonment of possession.-If a bailee who has a right of lien upon property in his possession voluntarily parts with the possession of such property, the lien is gone; so that if he afterwards recovers possession of the property his right of lien does not revive(s); but if it is stolen or taken away by a trespasser or by fraud, and he gets it back again, his right of lien is not extinguished (t). Possession of goods and chattels may be given up, and the right of lien extinguished, although the goods and chattels are never actually removed from the premises of the party having the lien(u). And, on the other hand, as the possession of the servant is the possession of the master, it follows that a depositary or bailee who has a right of lien upon goods in his possession does not lose his right by placing the goods in the hands of his servant or agent for custody, who is to hold them at his disposal. Warehousekeepers and wharfingers to whom goods have been delivered by masters of ships for safe custody, have been held to be the servants of such masters holding the goods at their disposal, so as to preserve the shipmaster's lien for the freight after the goods. have been taken out of the ship(v).

The right of lien being a mere personal right, which cannnot be parted with, it follows that a bailee who has got a lien cannot sell his right to another, nor can be transfer, as we have just seen, the property over which the lien extends, to another, without losing his right of lien(x), unless the property has been pledged to secure the repayment of money advanced, with an express or implied power of sale(y),

(p) Maauss v. Henderson, 1 East, 337. (q) Snook v. Davidson, 2 Campb. 218. (r) Lanyon v. Blanchard, ib. 597.

(8) Sweet v. Pym, 1 East, 4. Brackett v. Hayden, 3 Shep. 347. M'Farland v. Wheeler, 26 Wend. 467. Matthews v. Menedger, 2 M'Lean, 145. Bailey v. Quint, 22 Vt. 474. King v. In

dian Orchard Canal Co., 11 Cush. (Mass.) 231. Danforth v. Pratt, 42 Me. 50. See, however, Spaulding v. Adams, 32 Me. 211.

(t) Wallace v. Woodgate, R. & M. 194. (u) Jacobs v. Latour, 2 M. & P. 205.

(v) Reeves v. Capper, 5 B. N. C. 136.

(x) Clerk v. Gilbert, 2 B. N. C. 357.

(y) See Johnson v. Stear, 33 L. J., C. P. 130.

for there is a clear distinction in this respect between a lien, which is a mere personal right of detention, aħd a pledge deposited to secure the repayment of money(z). An innkeeper, consequently, cannot sell the horse of his guest for the expense of his keep, except within the city of London(a). A sheriff cannot sell an interest of this description, and he cannot, consequently, seize property covered by the lien under an execution against the party claiming the lien(b); but if the execution is against the owner of the goods, he is entitled then to seize them, after tendering the amount of the debt for which they are a security. A person may, as we have before seen, reserve to himself, by express contract, a right to take and to hold goods as a security for the payment of a debt, so that he will be entitled to resume possession of the goods after he has parted with them, and to re-establish his lien, provided the rights of no third person have intervened. 627 Statutory power of sale in discharge of a right of lien.-By the Merchant Shipping Act, 1862, power is given to wharf or warehouse owners, in certain cases, to sell by public auction goods placed in their custody, and apply the proceeds of the sale in satisfaction and discharge of the charges upon them(c).

628 Tender of the debt in extinguishment of the right of lien.-Wherever a person has a lien upon goods for the payment of money due upon them, whether he be an unpaid vendor in possession of goods sold, or a manufacturer or workman in possession of goods that have been worked up or repaired by him, or a pledgee holding chattels as a security for a debt, the lien may be at once extinguished, and a right to the possession of the goods created, by a tender of the money due upon. them(d). Where a lease was deposited with the defendants as a security for the repayment of 1507. on a promissory note payable on demand, and the defendants agreed that they would not enforce their remedy upon the note so long as the maker should duly pay the interest thereon, the rent of the premises, and what might from time to time be due to them for beer, and if he failed in any of these respects, the defendants were to be at liberty, after notice, to sell the lease and to deduct the expenses of the sale, the principal money and interest, and any account then due from the plaintiff to the defendant, it was held that the moment the amount of the note was paid or

(z) Donald v. Suckling, L. R., 1 Q. B. 585.

(a) Jones v. Pearle, 1 Str. 556.

(b) Legg v. Evans, 6 M. & W. 42. See Young v. Lambert, L. R., 3 P. C. Ca. 142.
(c) 25 & 26 Vict. c. 63, ss. 73-76.

(d) Ratcliff v. Davies, Cro. Jac. 244.

tendered, there was an end of all the stipulations as to what should be done with the lease in the event of the non-payment of the note and interest, and that the plaintiff had a right to maintain an action of detinue to recover back his lease(e).

629 Detention of goods and chattels, deeds and securities, by one of several joint-owners or tenants in common.-"If two be possessed of chattels personal in common by divers titles, as of a horse, an ox, or a cow, etc., if the one take the whole to himself out of the possession of the other, the other hath no other remedy but to take this from him who hath done to him the wrong, to occupy in common, etc., when he can see his time"(f). Where two have an equal interest in a deed, and each may have occasion to use it, as for instance, where the same deed grants Whiteacre to A, and Blackacre to B, it is manifest that both cannot hold the deed at the same time; and to avoid any unseemly contest for the possession of it, it has been held that he who first gets hold of it is entitled to keep it. For fraud or force which may be used to get possession of the deed, either party may perhaps have a remedy against the other; but the title to the deed is ambulatory between those who may have an interest in, and may have occasion to use it, and each is entitled to keep the deed from the other so long only as he actually retains it in his custody and control, but no longer(g).

66

630 Re-delivery of chattels to one of several joint-bailors.—If an action is brought by several joint-bailors against a bailee for the non-delivery of goods deposited in his hands by a joint-bailment from all of them, it is a good defence to the action that the goods bailed by the plaintiffs to the defendant have been delivered up to one of them. "It is said," observes Lord Campbell, "that this is no defence, because the contract of bailment was not to deliver them except to the plaintiffs jointly. But as, in fact, one of the plaintiffs has got the goods, the question arises whether he can sue the defendants for giving them to himself. It would be contrary to all principle, and the cases show that it would be contrary to all law, if he could. I do not think an action could be maintained against bankers in this position more than against others: but it is not to be supposed they could therefore with impunity deliver up to one person securities deposited with them to hold for several persons. I think, in such a case, they would stand in the relation of

(e) Chilton v. Carrington, 15 C. B. 105.

(f) Litt. sec. 323.

(g) Foster v. Crabb, 12 C. B. 136.

trustees for all the joint-bailors; and there would be a clear remedy in equity for the breach of trust in delivering the joint property to one only of the cestui que trusts"(h).

SECTION II.

OF ACTIONS FOR THE NEGLIGENT MANAGEMENT, NEGLIGENT KEEPING, AND UNLAWFUL DETAINING OF GOODS AND CHATTELS.

631 Parties to be made plaintiffs.-Where injury has been sustained by the servants of a bailee from the negligence of the bailor, in not giving notice of the dangerous nature of the subject-matter of the bailment, the servant is the proper person to sue for damages(i). A mere gratuitous bailment of a chattel to another does not, as we have seen, remove the chattel out of the possession of the bailor, and does not prevent the latter from suing a third person who takes the chattel out of the hands of the bailee and refuses to deliver it to the bailor on demand (ante, pp. 445, 446). In case of gratuitous bailment, the bailee generally holds the chattels merely at the will of the bailor, and is bound to return them whenever required so to do. Where, therefore, brewers sell porter in casks, and lend the casks to their customers until they are emptied, they may maintain an action against a wrongdoer for taking and detaining the empty casks(). And where chattels lent to hire have been permanently injured or destroyed whilst in the hands of the bailee by a wrong-doer, the bailor, or owner of the chattels, may maintain an action on the case in respect of the damage done to his reversionary interest in them. The mere outstanding right of the bailee to the use of the chattels does not debar the owner of this right of action().

In all cases of bailment of chattels by one person to another for hire or reward, it is essential that the bailee should preserve his dominion and control over the property, and his power of restoring it to the

(h) Brandon v. Scott. 7 Ell. & Bl. 237; 26 Law J., Q. B. 163.

(i) Farrant v. Barnes, 11 C. B., N. S. 553; 31 Law J., C. P. 137.

(k) Manders v. Williams, 4 Exch. 343.

(1) Mears v. Lond. & S.-West Rail. Co., 11 C. B., N. S. 850; 31 Law J., C. P. 220. Howard v. Farr, 18 N. H. 457.

owner. If, therefore, he parts with the possession of the chattel, and places it under the dominion and control of a stranger, the bailment is determined, and the owner has a right of action for the recovery of the thing bailed(m).

Where, after a bailment of chattels, the bailor has transferred all his interest in the chattels to another, the bailee is entitled, as we have seen, to have an order or authority from the bailor to deliver them to his transferee, or a reasonable time to make inquiry and ascertain the validity of the new title of the claimant before he can be made responsible in damages for the non-delivery of the chattels to the latter(n). Where, for example, goods have been bailed by the owner to a warehouse-keeper, to be kept, and the owner has subsequently sold the goods to a purchaser, the warehouse-keeper is not responsible for refusing to deliver the goods to the purchaser without the production of a delivery-order from the bailor, or some documentary evidence of title to the goods on the part of the stranger who demands them; but he may, if he pleases, at once attorn to the purchaser, and rely upon the title of the latter(o).

If the bailee has received the chattels upon the terms that he is to deliver them to the bailor, or to any person authorized by him to receive them, a bonâ fide purchaser or mortgagee, who is in possession of a bill of sale, or assignment, or mortgage, executed by the bailor, transferring all the bailor's interest in the chattels to such purchaser or mortgagee, may, on presenting such bill of sale or mortgage to the bailee, lawfully demand possession of the chattels, and in case of the refusal of the latter to deliver them to him within a reasonable time after the demand (ante, p. 401), may maintain an action for the conversion or detention of the property (p), the bill of sale or mortgage signed by the bailor, being an authority or direction to the bailee to deliver up the chattels to the purchaser or mortgagee; but if there be a mere oral agreement of sale, and no warrant, or authority, or direction from the bailor for the delivery of the goods, the refusal of the bailee to deliver them to the stranger would be no proof of a conversion, or of a wrongful detainer. It is to a case of this sort, where there has been a mere oral transfer of chattels by a bailor, without any warrant or authority from the latter to the bailee to deliver them to the transferee,

(m) Cooper v. Willomat, 1 C. B. 682.

(n) Ante, pp. 401, 102, Lee v. Bayes, 18 C. B. 607; 25 Law J., C. P. 249. Solomons v. Dawes, 1 Esp. 82.

(0) Ogle v. Atkinson, 5 Taunt. 762. Cheesman v. Exall, 6 Exch. 344; ante, p. 402.

(p) Franklin v. Neate, 13 M. & W. 484; 1 Roll. Abr. DETINUE, C. 2, 3.