behalf a secret lien upon personal property after he has claimed it
unconditionally as his own, and has thereby induced another to act in
relation to it, in some manner affecting his own interest, as he would,
or might, not have done if he had been openly and fairly notified of the
additional ground of claim. It would be fraudulent in him to practise
such concealment to the injury of others; and to prevent the possibility
of attempts so unjust becoming successful, the law implies that an
intended concealment of that kind is of itself a waiver of the lien. The
authorities cited by the counsel for the defendant, not less than its
intrinsic reasonableness, fully warrant the ruling to which the plaintiff
objected.
Exceptions overruled.

by dft, seif ga securely 2443 cases well giving dft. it. not paid. if

In the day before the

debt was dfine evine and lalir gave warrants.

JOHNSON v. STEAR.

COMMON PLEAS. 1863.

t) converson by dfsb) Plif has it. to poss Meas of

Ham-nominal

[Reported 15 C. B. N. S. 330.]ent - Value.

THIS was an action brought by the plaintiff as assignee of one Mathew Cumming, a bankrupt, for the alleged wrongful conversion by the defendant of 243 cases of brandy and a pipe of wine.

of trover

can dan

The defendant pleaded not guilty and not possessed, whereupon issue be only was joined.

I feed that The cause was tried before Erle, C. J., at the sittings in London after
There is a last Easter Term. The facts as proved or admitted were as follows:
wrongful On the 26th of January, 1862, the bankrupt, Cumming, applied to the
defendant for an advance of £62 10s. upon the security of certain
als that brandies then lying in the London Docks. The defendant consented
The damage to make the advance, and Cumming gave him his acceptance at one
& flif are to
'month for the amount, at the same time handing him the dock-warrant
be fucksured
for the brandies and the following memorandum : —
by the loss

He has sus

"I have this day deposited with you the undermentioned 243 cases
of brandy, to be held by you as a security for the payment of my
acceptance for £62 103. discounted by you, which will become due
January 29, 1863; and, in case the same be not paid at maturity, I
authorize you at any time, and without further consent by or notice to
me, to sell the goods above mentioned, either by public or private sale,
at such price as you think fit, and to apply the proceeds, after all
charges, to the payment of the bill; and, if there should be any defi-
ciency, I engage to pay it.
(Signed) M. CUMMING."

Then followed an enumeration of the marks and numbers on the
cases.

On the 3d of January, Cumming obtained from the defendant a further advance of £25 upon the security of a warrant for a pipe of port

with

wine, with an I. O. U. and a post-dated check (7th January), but no distinct authority, as in the case of the brandies, to sell on default of payment on a given day.

Cumming absconded on the 5th of January, and was declared a bankrupt on the 17th; and the plaintiff was afterwards appointed assignee.

On the 28th of January, the defendant contracted to sell the brandies to Messrs. Ruck & Co. On the 29th (the day on which Cumming's acceptance became due) the dock-warrant was delivered to them, and on the 30th they took actual possession of the brandies. The check given by Cumming for the second advance being also dishonored, the defendant sold the wine for £40. The demand and refusal were on the 27th of February.

On the part of the defendant it was submitted that there was no conversion, and that the transactions were protected, the adjudication being now the dividing line; and that, at all events, the plaintiff was only entitled to nominal damages for the premature sale of the brandies, it being assumed that the bankrupt had no intention to avail himself of his right of redemption.

Under the direction of the learned judge, the jury returned a verdict for the plaintiff, assessing the value of the wine at £40, and that of the brandies at £62 10s.; and leave was reserved to the defendant to move to enter a verdict for him if the court should be of opinion that the plaintiff was not entitled to recover.

Powell, in Trinity Term, moved for a rule accordingly.
Denman, Q. C., and Howard, now showed cause.

ERLE, C. J., now delivered the judgment of the majority of the court.1

In trover by the assignee under the bankruptcy of one Cumming, the facts were that Cumming had deposited brandy lying in a dock with one Stear, by delivering to him the dock-warrant, and had agreed that Stear might sell, if the loan was not repaid on the 29th of January; that, on the 28th of January, Stear sold the brandy, and on the 29th handed over the dock-warrant to the vendees, who on the 30th took actual possession.

Upon these facts, the questions are, - first, was there a conversion? and, if yes, secondly, what is the measure of damages?

To the first question our answer is in the affirmative. The wrongful sale on the 28th, followed on the 29th by the delivery of the dockwarrant in pursuance thereof, was, we think, a conversion. The defendant wrongfully assumed to be owner in selling; and, although the sale alone might not be a conversion, yet, by delivering over the dock-warrant to the vendees in pursuance of such sale, he interfered with the right which Cumming had of taking possession on the 29th if he repaid the loan; for which purpose the dock-warrant would have

1 Consisting of himself, Byles, J., and Keating, J.

been an important instrument. We decide for the plaintiff on this ground and it is not necessary to consider the other grounds on which he relied to prove a conversion. Then the second question arises.

The plaintiff contends that he is entitled to the full value of the goods sold by the defendant, without any deduction, on the ground that the interest of the defendant as bailee ceased when he made a wrongful sale, and that therefore he became liable to all the damages which a mere wrong-doer who had wilfully appropriated to himself the property of another without any right ought to pay. But we are of opinion that the plaintiff is not entitled to the full value of the goods. The deposit of the goods in question with the defendant to secure repayment of a loan to him on a given day, with a power to sell in case of default on that day, created an interest and a right of property in the goods which was more than a mere lien; and the wrongful act of the pawnee did not annihilate the contract between the parties nor the interest of the pawnee in the goods under that contract.

It is clear that the actual damage was merely nominal. The defendant by mistake delivered over the dock-warrant a few hours only before the sale and delivery by him would have been lawful; and by such premature delivery the plaintiff did not lose anything, as the bankrupt had no intention to redeem the pledge by paying the loan.

If the plaintiff's action had been for breach of contract in not keeping the pledge till the given day, he would have been entitled to be compensated for the loss he had really sustained, and no more: and that would be a nominal sum only. The plaintiff's action here is in name for the wrongful conversion; but, in substance, it is the same cause of action; and the change of the form of pleading ought not in reason to affect the amount of compensation to be paid.

There is authority for holding, that, in measuring the damages to be paid to the pawnor by the pawnee for a wrongful conversion of the pledge, the interest of the pawnee in the pledge ought to be taken into the account. On this principle the damages were measured in Chinery v. Viall, 5 Hurlst. & N. 288. There, the defendant had sold sheep to the plaintiff; and, because there was delay in the payment of the price by the plaintiff, the defendant resold the sheep. For this wrong the court held that trover lay, and that the plaintiff was entitled to recover damages; but that, in measuring the amount of those damages, although the plaintiff was entitled to be indemnified against any loss he had really sustained by the resale, yet the defendant as an unpaid vendor had an interest in the sheep against the vendee under the contract of sale, and might deduct the price due to himself from the plaintiff from the value of the sheep at the time of the conversion.

In Story on Bailments, § 315, it is said: "If the pawnor, in consequence of any default or conversion by the pawnee, has recovered back the pawn or its value, still the debt remains and is recoverable, unless in such prior action it has been deducted: and it seems that, by the common law, the pawnee in such action for the value has a right to

have the amount of his debt recouped in damages." For this he cites Jarvis v. Rogers, 15 Mass. R. 389. The principle is also exemplified in Brierly v. Kendall, 17 Q. B. 937. There, although the form of the security was a mortgage, and not a pledge; and although the action was trespass and not trover; yet the substance of the transaction was in close analogy with the present case. There was a loan by the defendant to the plaintiff, secured by a bill of sale of the plaintiff's goods, in which was a reservation to the plaintiff of a right to the possession of the goods till he should make default in some payment. Before any default, the defendant took the goods from the plaintiff and sold them. For this wrong he was liable in trespass; but the measure of damages was held to be, not the value of the goods, but the loss which the plaintiff had really sustained by being deprived of the possession. The wrongful act of the defendant did not annihilate his interest in the goods under the bill of sale; and such interest was to be considered in measuring the extent of the plaintiff's right to damages.

On these authorities we hold that the damages due to the plaintiff for the wrongful conversion of the pledge by the defendant, are to be measured by the loss he has really sustained; and that, in measuring those damages, the interest of the defendant in the pledge at the time of the conversion is to be taken into the account. It follows that the amount is merely nominal, and therefore that the verdict for the plaintiff should stand, with damages 40s. Dissent WILLIAMS, J. I agree with the rest of the court that there was sufficient proof of a conversion; for, although the mere sale of the goods (according to The Lancashire Waggon Company v. Fitzhugh, 6 Hurlst. & N. 502) would have been insufficient, yet I think the handing over of the dock-warrant to the vendees before the time had arrived at which the brandies could be properly sold, according to the terms on which they were pledged, constituted a conversion, inasmuch as it was tantamount to a delivery. Not that the warrant is to be considered in the light of a symbol, according to the doctrine applied to cases of donations mortis causa; it is the means of coming at the possession of a thing which will not admit of corporal delivery. Ward v. Turner, 2 Ves. sen. 431; Smith v. Smith, 2 Stra. 295.

But I cannot agree with my Lord and my learned Brothers as to the other point; for, I think the damages ought to stand for the full value of the brandies. The general rule is indisputable, that the measure of damages in trover is the value of the property at the time of the conversion. To this rule there are admitted exceptions. There is the well-known case of a redelivery of the goods before action brought, which, though it cannot cure the conversion, yet will go in mitigation of damages. Another exception is to be found in cases where the plaintiff has only a partial interest in the thing converted. Thus, if one of several joint-tenants or tenants in common alone brings an action against a stranger, he can recover only the value of his share. So, if

the plaintiff, though solely entitled to the possession of the thing converted, is entitled to an interest limited in duration, he can only recover damages proportionate to such limited interest, in an action against the person entitled to the residue of the property (though he may recover the full value in an action against a stranger). The case of Brierly v. Kendall, which my Lord has cited is an example of this exception. There, the goods had been assigned by the plaintiff to the defendant by a deed the terms of which operated as a re-demise, and, since the defendant's quasi estate in remainder was not destroyed or forfeited by his conversion of the quasi particular estate, the plaintiff, as owner of that estate, was only entitled to recover damages in proportion to the value of it.

With respect, however, to liens, the rule, I apprehend, is well established, that, if a man having a lien on goods abuses it by wrongfully parting with them, the lien is annihilated, and the owner's right to possession revives, and he may recover their value in damages in an action of trover. With reference to this doctrine, it may be useful to refer to Story on Bailments. In § 325, that writer says: "The doctrine of the common law now established in England, after some diversity of opinion, is, that a factor having a lien on goods for advances or for a general balance, has no right to pledge the goods, and that, if he does pledge them, he conveys no title to the pledgee. The effect of this doctrine is, in England, to deny to the pledgee any right in such a case to retain the goods even for the advances or balance due to the factor. In short, the transfer is deemed wholly tortious; so that the principal may sue for and recover the pledge, without making any allowance or deduction whatever for the debts due by him to the factor." After stating that the English legislature had at length interfered, the learned author continues, in § 326, "In America, the general doctrine that a factor cannot pledge the goods of his principal, has been repeatedly recognized. But it does not appear as yet to have been carried to the extent of declaring the pledge altogether a tortious proceeding, so that the title is not good in the pledgee even to the extent of the lien of the factor, or so that the principal may maintain an action against the pledgee without discharging the lien, or at least giving the pledgee a right to recover the amount of the lien in the damages.” But, in the 6th edition, by Mr. Bennett, it is added, "Later decisions have, however, fully settled the law, that a pledge by a factor of his principal's goods is wholly tortious, and the owner may recover the whole value of the pledgee, without any deduction or recoupment for his claim against the factor." And I may mention that I have reason to believe this rule as to liens was acted upon a few days ago in the Court of Queen's Bench. Siebel v. Springfield, 9 Law T. N. S. 325.

But it is said that the maintenance of such a rule in respect of pledges is inconsistent with Chinery v. Viall, mentioned by my Lord. It seems to me, however, that the decision of that case does not interfere