the debt. I am of opinion that the transfer of the pledge does not put an end to the contract, but amounts only to a breach of contract, upon which the owner may bring an action, for nominal damages if he has sustained no substantial damage; for substantial damages, if the thing pledged is damaged in the hands of the third party, or the owner is prejudiced by delay in not having the thing delivered to him on tendering the amount for which it was pledged. We are not dealing with a case of lien, which is merely the right to retain possession of the chattel, and which right is immediately lost on the possession being parted with, unless to a person who may be considered as the agent of the party having the lien for the purpose of its custody. In the contract of pledge the pawnor invests the pawnee with much more than the mere right of possession. He invests him with a right to deal with the thing pledged as his own, if the debt be not paid and the thing redeemed at the appointed time. It seems to me that the contract continues in force, and with it the special property created by it, until the thing pledged is redeemed or sold at the time specified. The pawnor cannot treat the contract as at an end until he has done that which alone enables him to divest the pawnee of the inchoate right of property in the thing pledged, which the contract has conferred on him. The view which I have taken of this case, and which I should have arrived at independently of authority, is fully borne out by the decision of the majority of the Court of Common Pleas in the case of Johnson v. Stear. There, goods which had been pledged as security for the payment of a bill of exchange, having been sold before the falling due of the bill, the court held — on an action of trover being brought to recover the goods that, although the owner was entitled to maintain an action against the pawnee for a breach of contract in parting with the goods, yet that the contract itself was not put an end to by the tortious dealing with the goods by the pawnee so as to entitle the owner to bring an action to recover the goods as if the contract never had existed. This decision appears to me to be a direct authority on the present case, and to be binding upon us. It is true that Mr. Justice Williams dissented from the other three judges constituting the court, holding that the contract was put an end to, and the plaintiff remitted to his absolute right of ownership by the conversion of the goods by the pawnee. But, however I may regret to differ from that very learned judge, I concur, for the reasons I have given, with the majority of the Court of Common Pleas in holding that a pawnor cannot recover back goods (and the same principle obviously would apply to debentures) pledged as security for the payment of a debt or bill of exchange until he has paid or tendered the amount of the debt. I am therefore of opinion that our judgment should be in favor of the defendant. Judgment for the defendant. Keighley and Gething, for the plaintiff. absconded APPEAL from the judgment of the Court of Exchequer, discharging without a rule to enter a verdict for the plaintiff in an action of trover brought making by the creditors' assignee of one Bentley against the defendant to demand or recover the value of certain shares, the defendant pleading, amongst other pleas, not possessed. On the 30th of April, 1866, Bentley bought of one Scholefield fifteen soon In June, 1866, Bentley borrowed of the defendant £350 on his own promissory note payable on demand, and on the security of the twentyfive shares above mentioned, and he at the same time handed to the defendant the two agreements, promising to deliver to him the scrip as soon as he received it. On the 16th of January, 1867, Bentley handed to the defendant the fifteen scrip certificates for the first fifteen shares, and received back the agreement relating to the ten shares, on paying £100 on account of the debt. On the same day Bentley's firm stopped payment; they were afterwards adjudicated bankrupts, and the plaintiff was appointed creditors' assignee, Bentley absconding before passing his final examination. The defendant, after the bankruptcy, sold the scrip of ten of the fifteen shares, but it did not appear that he had made any demand on, or given notice to, either Bentley or the plaintiff, the assignee. The value of the scrip for the ten shares was admitted to be £200. The cause was tried before Mellor, J., at the Liverpool Spring Assizes, 1867, and the learned judge nonsuited the plaintiff, reserving leave to him to move to enter a verdict for him for £200, or such other sum as the court should think fit. A rule was obtained accordingly, and was, after argument in the court below, in Hilary Term last, discharged on the authority of Donald v. Suckling, Law Rep. 1 Q. B. 585. The plaintiff appealed. Jordan, for the appellant. Quain, Q. C. (Herschell with him), was not called upon. The judgment of the court (WILLES, BLACKBurn, Keating, Monta- WILLES, J. We are all of opinion that this judgment must be Averilen Donald v Suckling by holding that it is not a envenio. 401. 4. Suf affirmed. The action is brought by an assignee in bankruptcy to re- But it has been argued that the plaintiff is at any rate entitled to nominal damages, for that a conversion was committed by the sale of the certificates. That sale, it is contended, had the effect of putting an end to the bailment of pledge; the property of the pledgee was thereby determined, so as to enable the assignee to say that at the moment when the sale took place he became entitled to the certificates by virtue of the general property which then revested in him. This reasoning proceeds upon a somewhat subtle and narrow ground, for it is admitted that the assignee could only claim nominal damages. But we cannot arrive at the conclusion that he is so entitled without getting rid of the case of Donald v. Suckling, Law Rep. 1 Q. B. 585; and so far from feeling disposed to overrule that case, we are satisfied of its good sense, and think that it puts the whole matter on a plain and intelligible footing. There are three kinds of security: the first, a simple lien; the second, a mortgage, passing the property out and out; the third, a security intermediate between a lien and a mortgage — viz., a pledge where by contract a deposit of goods is made a security for a debt, and the right to the property vests in the pledgee so far as is necessary to secure the debt. It is true the pledgor has such a property in the article pledged as he can convey to a third person, but he has no right to the goods without paying off the debt, and until the debt is paid off the pledgee has the whole present interest. If he deals with it in a manner other than is allowed by law for the payment of his debt, then, in so Am Lanza Plos. does not have to make tender to motor courrion Eng For crespass innocent of cakes Poss at time of injury Vix Frmis. 3. ид инские, Peif. A DRAPER having a servant to sell cloths in his shop, the servant took cloths and converted them to his own use, and it was adjudged that trespass vi et armis lay, because he was only a servant, and had the possession of the cloths as servant, and so preserved the possession of his master. And therefore if a shepherd or a butler stole sheep or plate, that was felony at the common law. 3 Hen. VII., and 21 Hen. VII. But if one delivers a chattel to his servant to deliver over, and he steals it, that is no felony, because he has a special property, on which he can maintain trespass for a taking out of his possession. And Anderson [C. J.], said that in all cases where the servant has neither special nor general property, trespass lies, otherwise of a bailee. And accordingly they adjudged also at this term, that if a lessee at will cuts trees, trespass vi et armis lies, because the trees are not delivered to him. itous nolice. thal Wrong E. Actions of Bailor against Bailee. today. LIT. 77. I lend to one my sheepe to tathe his land, or my oxen to plow the land, and he killeth my cattell, I may well have an action of trespass against him, notwithstanding the lending. At this time then was no dieen Servant can be nation between trespair and Evidence jo 615 Note, 76151 L falion far as by disposing of the reversionary interest of the pledgor he causes to the pledgor any difficulty in obtaining possession of the pledge on payment of the sum due, and thereby does him any real damage, he commits a legal wrong against the pledgor. But it is a contradiction in fact, and would be to call a thing that which it is not, to say that the pledgee consents by his act to revest in the pledgor the immediate interest or right in the pledge, which by the bargain is out of the pledgor and in the pledgee. Therefore, for any such wrong an action of trover or of detinue, each of which assumes an immediate right to possession in the plaintiff, is not maintainable, for that right clearly is not in the plaintiff. The judgment must, therefore, be affirmed. Judgment affirmed. Ift was click in plifs sine and Converted goods. Iteed trespass for he had BLOSS v. HOLMAN.1 COMMON PLEAS. 1587. [Reported Owen, 52.] noch JOHN BLOSS brought an action of trespass, quare vi et armis, for M.or taking of his goods, against Holman, and the defendant pleaded not prop in guilty, and the jury gave a special verdict, namely, that the plaintiff at the time of the trespass was of the Mystery of the Mercers, and that at that time the defendant was his servant, and put in trust to sell his goods and merchandises in shopa sua, ibidem de tempore in tempus, and that he took the goods of the plaintiff named in the declaration, and carried them away, and prayed the advice of the court, if the defendant were culpable or not; and upon the postea returned, Shuttleworth prayed judgment for the plaintiff. And the doubt was because the declaration was quare vi et armis, because it appeared that the defendant had custody of the goods; but Shuttleworth doubted whether he had custody, and cited the case of Littleton, namely, if I give my sheep to compasture, &c. and he kills them, an action of trespass lies; and the justices held that in this case the action did well lie; and PERIAM said that the defendant had only an authority, and not custody or possession; and judgment was given for the plaintiff. 3 H. 7, 12; 21 H. 7, 14. And WINDHAM said, that if he had embezzled his master's goods, without question it was felony. Quod fuit concessum (ANDERSON absent), and the law will not presume that the goods were out of the possession of the plaintiff; and the next day came the LORD ANDERSON and rehearsed the case, and said, that the defendant had neither general nor special property in the goods, for it is plain he could have no general property, and special he had not, for he could not have an action of trespass if they were taken away, then if he had no property, a trespass lies against him, if he take them; so if a shepherd steal sheep, it is felony, for he hath no property in them; wherefore he gave judgment accordingly.1 1 s. c. sub nom. Glosse & Hayman's Case, 1 Leon. 87. "Thus far nothing has been said with regard to the custody of servants. It is a wellknown doctrine of the criminal law, that a servant who criminally converts property of his master intrusted to him and in his custody as servant is guilty of theft, because he is deemed to have taken the property from his master's possession. This is equivalent to saying that a servant, having the custody of his master's property as servant, has not possession of that property, and it is so stated in the Year Books. "The anomalous distinction according to which, if the servant receives the thing from another person for his master, the servant has the possession, and so cannot commit theft, is made more rational by the old cases. For the distinction taken in them is, that while the servant is in the house or with his master, the latter retains possession; but if he delivers his horse to his servant to ride to market, or gives him a bag to carry to London, then the thing is out of the master's possession and in the servant's. In this more intelligible form, the rule would not now prevail. But one half of it, that a guest |