WAIVER. Possession is a necessary ele ment of common-law liens ; and if the credi tor once knowingly parts with it after the lien attaches, the lien is gone; Jordan v. James, 5 Ohio 88 ; 6 East 25, n.; Clemson T. Davidson, 5 Blnn. (Pa.) 398; Bigelow v. Heaton, 4 Denio (N, Y.) 498; Danforth v. Pratt, 42 Me. 50 ; King v. Canal Co., 11 Cush. (Mass.) 231; Elliot v. Bradley, 23 Vt.' 217; Egan v. A Cargo of Spruce Lath, 43 Fed. 480; Benj. Sales § 799; the abandon ment of his privilege by a vendor need not be in absolute terms, but it is enough if it can be inferred from the acts of the parties ; SuccerAion of Osborn, 40 La. Ann. 615, 4 South. 580. Parting with possession, if con sistent with the contract, the course of busi ness, and the intention of the parties, will not discharge a lien created by a contract; Spaulding v. Adams, 32 Me. 211. There may be a special agreement extending the lien, though not to affect third persons ; McFar land v. Wheeler, 26 Wend. (N. Y.) 467. De livery may be constructive ; Ambl. 252 ; and so may. possession ; Kollock v. Jackson, 5 Ga. 153. A lien cannot be transferred; Holly v. Huggeford, 8 Pick. (Mass.) 73, 19 Am. Dec. 303; but property subject to it may be delivered to a third person, as to the credi tor's servant, with notice, so as to preserve the lien of the original creditor ; 2 East 529. But it must not be delivered to the owner or his agent; 2 East 529; TJrquhart v. M'Iver, 4 Johns. (N. Y.) 103. But if the property be of a perishable nature, possession may be given to the owner under proper agree ments, 8 Term 199. Generally a delivery of part of goods sold is not equivalent to a delivery of the whole, so as to destroy tilt vendor's lien, but the lien will remain on the Part retained for the price of the whole, if the intention to separate the goods delivered from the rest is manifest ; Benj. Sales §
805. A grantor's lien on the premises con veyed for the purchase price is a personal privilege not assignable with the debt, nor can the creditor of the grantor be subrogat ed to the same ; First Nat. Bank v. Salem Flour Mills Co., 39 Fed. 89 ; Carhart v. Re viere, 78 Ga. 173, 1 S. E. 222 ; Gruhn v. Rich ardson, 128 Ill. 178, 21 N. E. 18.
Neglect to insist upon a lien, in giving rea sons for a refusal to deliver property on demand, has been held a waiver ; 1 Campb. 410, n.; Hanna v. Phelps, 7 Ind. 21, 63 Am. Dec. 410; Scott v. Jester, 13 Ark. 437: Where there a special agreement made, or act done, inconsistent with the existence of the lien, such as an agreement to give credit, or where a distinct security is taken, or the possession of the property is acquired for another distinct purpose, and for that only, or where the is attached by the creditor, no lien arises ; 5 M. & S. 180 ; Stoddard Woolen Manufactory v. Huntley, 8 N. H. 441, 31 Am. Dec. 198 ; Legg v. Wil lard, 17 Pick. (Mass.) 140, 28 Am. Dec. 282; Pinney v. Wells, 10 Conn. 104. But such agreement must be clearly inconsistent with the lien; Spaulding v. Adams, 32 Me. 211.
The only remedy or use of the lien at com mon law is to allow the creditor to retain possession of the goods ; Sullivan v. Park, 33 Me. 438 ; Meany v. Head, 1 Mas. 319, Fed. Cas. No. 9,379. And he may do this against assignees of the debtor ; 1 Burr. 489.
A waiver of exemption by a debtor as to any lien will enure to the benefit of all prior liens, on the principle that a debtor cannot alter the precedence settled by law ; Hall man v. Hallman, 124 Pa. 347, 16 Atl. 871.