Lien, as known to the common law, is conditional on possession of the goods being in the same hands as the right of lien. It ceases to exist the moment that possession is parted With. And though possession may have been lost unawares, the lien cannot be revived by getting possession again. Possession must be actual ; but the loss of it may be constructive. if goods in the hands of a wharfinger be transferred to another name in the wharfinger's books, though not removed from their place in the warehouse, the previous bolder thereby loses his lien. Or if be who has the lien procures them to be taken in execution at his own suit, or ships them for his principal on his account and risk, the lien is gone past recovery.
The possession must have been fair and legal in its commencement for any lien ever to attach. For if fraud or a trick be used to obtain possession, or otherwise it commences wrongfully, the object being to gain a lien, that object is thereby effectually frustrated.
The foundation of lien must be a present existing claim ; and if the person who has such a claim, nevertheless agrees to give credit, either with or without a bill of exchange for the amount, he waives his lien and can never again resort to it. Moreover, there may be a custom to give such credit, as in the case of the Thames ship wrights, so that in thg absence of express contract to the contrary, no lien arises. The person may even waive his lien by omitting all
mention of it at the same time that he asserts an inconsistent claim to the goods, in presence of the sheriff; and in many other ways, a Waiver of this right may take place.
With regard to real property, there is this remarkable difference, that notwithstanding the contract of sale, and the execution of the con veyance by the vendor, be retains in equity what is called the ven dor's lien on the estate for the purchase money, or any part thereof that still remains unpaid. And, on the other hand, if a good title to the estate sold is not made by the vendor, the purchaser has in equity a lien on the estate for the money paid by him as deposit or part of the price.
Lien, which is not disturbed by the party, is not affected by the statute of limitations. For the lapse of time, by force of the statute, merely bars the remedy by action ; but this natural remedy which the creditor retains in his own hand remains intact, and the debt continu ing, there is no reason in the lapse of time why he should not continue to retain the security.