Where the party giving possession of the property has no power to dispose of it, no lien will attach;2 and it has been repeatedly decided, that, at common law, a factor with authority to sell property, cannot pledge it so as to create a lien against the owner, (v) But some statutes, both in this country and in England, have made such acts effectual against the principal, if the bailee claiming the lien acts in good faith, and without knowledge that the factor has no power to pledge, (vv)

A creditor who knows that his debtor is in failing circumstances, acquires no lien upon property which he takes as security for an existing debt, as against the assignees of his debtor; such a transaction being regarded as a fraud upon bankrupt laws. That a lien which depends upon the claimant's possession may attach, it is necessary that the property should come into his hands, or those of his recognized agent; and therefore where bankers, having fraudulently sold out stock belonging * to a customer, which stood in their names, and used the proceeds afterwards, while yet in solvent condition, made a special deposit in their own safe or repository, with other private securities of their customers, of certain bonds duly enveloped and inscribed with this customer's name, and accompanied with a written statement that they had deposited the bonds with him as collateral security for his stock, and a promise to replace it, but gave him no information of these circumstances until the eve of their bankruptcy, when they sent the parcel to him with a message that they must stop payment the next morning, - it was determined that the customer had no lien upon the bonds as against the assignees, he not having sufficient possession of them prior to the bankruptcy. It was considered that the bankers could not be regarded as his agents for the receipt of the bonds, for want of knowledge and recognition on his part, at the time of the transaction, (w)

(v) Graham v. Dystpr, 6 M. & S. 1; Qnieroz p. Trueman, 3 B, & C, 342; 5

D. & R. 192; Gill v. Kymer, 5 Moore, 503.

(vv) See ante, vol. i. p. * 93.

1 A person cannot avail himself of a lien the discharge of which has been fraudulently prevented by his own acts. Carey v. Brown, 92 U. S. 171.- K.

2 A bailee of a chattel can impose upon it no lien against the owner without his knowledge and consent, Small v. Robinson, 69 Me. 425; nor give a carrier a lien on a chattel for its carriage for the bailee's convenience and at his request alone, Gilson v. Gwinn, 107 Mass. 126. - K.

An express stipulation of a principal, that the proceeds of particular goods shall be paid over to him by his factor, will prevent a lien for a general balance from attaching to the portion of these goods that may be unsold, (x) So if there be a special agreement between a factor and his principal, for a particular mode of payment of his charges; or if he have notice of a special agreement between his principal and a third person, as to the application of the proceeds of a particular invoice, the general lien of the factor cannot be set up. (y)