Continuance of possession being indispensable to the existence of liens at law, an abandonment of the custody of the * property over which the right extends, divests the lien. In such a case the holder is deemed to surrender the security he has upon the goods, and trusts to the personal responsibility of the owner. But a transfer of the property to a third party, with notice of the lien, and accompanied by a transfer of the right, will not divest the lien. For the third party will in such case be regarded as the servant or representative of the claimant (z)1 If one who has a lien, claims to detain goods upon a different ground, making no mention of the lien, this will be considered as a waiver; and if the owner sue in trover for the detention, it will be unnecessary for him to prove a previous tender of the amount secured, (a)

(w) Wilson v. Balfour, 2 Camp. 579.

(x) Walker v. Birch, 6T. R. 258.-The case of McGillivray v. Simpson, 2 D. & R. 35, is not contrary to this; for the question there at issue was not one of lien, but rather one of set-off of debts under the bankrupt law.

(y) Cowell v. Simpson, 16 Ves. Jr. 275; Maber v. Massias. 2 W. Bl. 1072.

(z) Man v. Shifner, 2 East, 529; Glaholme v. Rowntree, 1 W. W. ft D. 280; s. c. 6 A. & £. 710; Pierson v. Dunlop, Cowp. 571; Davis v. Bigler, 62 Pa. 242.

(a) Boardman v. Sill, 1 Camp. 410. Plaintiff sued in trover for a quantity of brandy which lay in the defendant's cellars, and which, when demanded, he had refused to deliver up, saving it was his own property. At this time certain warehouse rent was due to the defend1 Where it was expressly agreed that a purchaser of land should cut the timber thereon into railway ties, upon which the seller should have a lien for the purchase-money, a railroad company, whose agent buys and pays for the ties with notice of the lien, takes the ties subject to the lien. Slater v. Irwin, 38 la. 261. - K.

An alienation of the property by the owner, while it is in possession of the party holding under the lien, will not divest it, for the alienee must take it subject to the incumbrance, (b) Taking the property in execution at the suit of the party having the lien, will destroy his lien, by changing the possession from the bailee to the sheriff, even though the goods are allowed by the officer to remain with the party. For the possession virtually vests in the sheriff, in order to enable him to sell the goods, (c) But property held under a lien is not liable to be taken in execution at the suit of a third party for the debt of the holder; for a sheriff can seize nothing but what he can sell, and he cannot substitute as the owner of the goods a third person between whom and the original owner there is no privity, (d)

It has also been decided, that an attachment of the property held under a lien, at the suit of another creditor, does not divest it, and the claimant under the lien will hold in preference to the * officer, (e) And receipting for the property attached is no waiver of the lien, (f) nor is the giving of a bond to the officer, for the safe-keeping and delivery thereof, (g) Where, however, goods in possession of the party having a lien upon them, are attached at the suit of such party upon the claim secured by the lien, it is held that the lien, as against the assignees of the bankrupt owner, is thereby lost. (h)

A security given to a partnership does not give a lien to a new firm formed by the members of the old and another person, (i)

A lien acquired under an illegal contract, if an executed one, may be good, as one arising under usury laws, if they impose a ant on account of the brandy, of which no tender had been made to him. The Attorney-General contended, that the defendant had a lien upon the brandy for the warehouse rent, and that, till this was tendered, trover would not lie. But Lord Ellenborough considered, that, as the brandy had been detained upon a different ground, and as no demand of warehouse rent had been made, the defendant must be taken to have waived hid lien, if he had one, - which would admit of some doubt. The plaintiff had a verdict.

(b) Godin v. L. As. Co 1 Burr. 489.

(c) Jacobs v. Latour, 2 M. & P. 20, 5 Bing. 130.

(d) Legs v. Evans, 6 Mees. & W. 36.

(e) Smith v. Goss, 1 Camp. 282.

(f) Townsend v Newell, 14 Pick. 332.

(q) Outcall v Darling, 1 Dutch. (N. J.) 443.

(h) Legg v. Willard, 17 Pick. 140. The plaintiff was assignee of an insolvent estate, and had received the greater part of the property belonging to the estate, by actual delivery. A portion, however, was in the hands of a workman, who had a lien thereon for his labor. Upon hearing of the assignment, the workman caused the goods that were in hi? possession to be attached, upon a suit brought against the insolvent, for the debt secured by the lien. The assignee demanded the goods of the attaching officer, and upon his refusal to give them up, sued him in trover. The officer defended, on the ground that the assignee could not main, tain trover unless he first discharged the lien. But the court held, that the officer had no lien transferred to him by virtue of his attachment for the benefit of the party holding the lien, and that the lien was waived by the party himself by his attachment of the property.

(i) Ex parte Pease, 2 Rose, 232.

penalty but do not invalidate the contract; or a contract made in violation of the Sunday laws, (j) In such cases the maxim, in pan delicto, would be applied should the bailor seek a legal remedy. But if the illegality arises solely from the misconduct of the party seeking to establish the right of lien, and is of such a nature as to invalidate the contract which he would enforce, the lien will not be sustained, (k)

Under ordinary circumstances, a lien is merged in a purchase of the property by the person holding possession under his lien. But if the owner has lost the power to sell, subsequently to giving the lien, as by committing an act of bankruptcy, the purchase being itself ineffectual will not invalidate the bailee's lien, by way of merger. The property in the goods will pass to the assignees, but subject to the lien. (l) And if a bailee of property encumbers *it with a lien for the cost of services done upon it, and subsequently induces the party holding the lien to buy it of him, by fraudulently representing that the property is his own, the lien will not merge in the purchase, and the real owner cannot reclaim his property from the holder, without discharging the debt secured by the lien, (m) It was formerly held, though somewhat vaguely, that a common-law lien would be waived by a special agreement as to the price to be paid to the bailee for the service to be performed upon the property; (n) but it is now settled, that a special agreement that will operate thus, must be inconsistent with the lien itself. Merely fixing the price is no waiver. (o)