"property;" and in Southcote's Case, 4 Rep. 83 b, to have a "property in, and not a custody only," of the chattel pawned; by which Lord Holt (2 Ld. Raym. 916, 917) understands Lord Coke to mean a "special property," consisting in this, "that the pawn is a security to the pawnee that he shall be repaid his debt, and to compel the pawnor to pay him; " or, in the words of Fleming, C. J. in Ratcliff v. Davis, Cro. Jac. 245: "a special property in the goods to detain them for his (the pawnee's) security;" that is, not a property properly so called, but the jus in re, that is, in re aliena, of the Roman lawyers; the opposite, as Mr. Austin says (Lectures on Jurisprudence: Tables and Notes, iii. 192), to property; but a right of possession against the true owner, and under a contract with him until his debt is paid, and a power of sale for the reciprocal benefit of the pawnee and pawnor on default of payment at the time agreed upon.

Mr. Justice Story says (On Bailments, s. 324), that "the pawnee may by the common law deliver the pawn into the hands of a stranger without consideration, for safe custody, or convey the same interest conditionally by way of pawn to another person, without destroying or invalidating his security, but that he cannot pledge it for a debt greater than his own; that if he do so he will be guilty of a breach of trust, by which his creditor will acquire no title beyond that of the pawnee; and that the only question which admits of controversy is, whether the creditor shall be entitled to retain the pledge until the original debt (that is, the debt due to the first pawnee) is discharged, or whether the owner may recover the pledge in the same manner as if the case was a naked tort without any qualified right in the first pawnee." So much of this passage as is stated to be clear law; viz. that the pawnee may deliver the chattel pawned to a stranger for safe custody without consideration, or convey the same conditionally (i. e., it may be presumed, on the same conditions as those on which he holds it) by way of pawn to another person for a debt not greater than his own, without destroying or invalidating his security, has no application to the case before us, inasmuch as the pawn by Simpson to the defendant was not for safe custody, nor without consideration, nor conditionally, nor for a debt not greater than the debt due by the plaintiff to Simpson, and because the power given to the pawnee by this bailment to dispose of the debentures by sale or otherwise, should his debt not be paid, might probably be considered, at least after default made, to enlarge the ordinary right of a pawnee over the chattel pawned. There is nothing in the passage which affords any countenance, except by way of query, to the position that a pawnee who, as in this case, has placed the chattel pawned out of the pawnor's power, and out of his own power, to redeem it by payment of the amount for which it was given to him as a security, and who has deprived himself of the power of selling it for the payment of the pawnor's debt, can by so doing shield the creditor to whom he repawns it from an action of detinue at the suit of the real owner. Mr Justice Story, indeed, says (On Bailments, s. 299), "that if the pledgee voluntarily and by his

own act places the pledge beyond his power to restore it, as by agreeing that it may be attached at the suit of a third person, that will amount to a waiver of the pledge." It would be difficult to reconcile any other rule in respect of the pledging by pledgees of the chattels pawned to them with the well-established doctrine of our courts and the courts of the United States of America in respect of the pledging by factors of the goods entrusted to them. Factors, like pledgees, have a mandate of sale,- sale irrespectively of default of any kind is the object of the bailment to them; they have a special property and right of possession against all the world except their principal, and against him if they have made advances on the security of his goods entrusted to them; to give effect to that security they may avail themselves of their mandate of sale; but if they place the goods out of their own power by pledging them, although it be for a debt not exceeding their advances, the pawnee from them (except under the Factors Acts) is defenceless, in trover or in detinue, even to the extent of his loan, against the true owner. Why it should be otherwise between the true owner and the pawnee from a pawnee of the true owner's goods, no reason was adduced during the argument before us, nor indeed was it possible to adduce any reason, seeing that in all the decisions on pledges by factors the relation between a factor who has made advances on the goods entrusted to him and his principal has been held not distinguishable, or barely distinguishable, in its legal incidents from the relation between pawnee and pawnor; a factor being, as Mr. Justice Story says, "generally treated in juridical discussions as in the condition of a pledgee." (On Bailments, ss. 325, 327; citing Daubigny v. Duval, 5 T. R. 604; M'Combie v. Davies, 7 East, 5.)

The case of Johnson v. Stear, 15 C. B. N. S. 330; 33 L. J. C. P. 130, is a clear authority for holding that Simpson, in dealing with the debentures in the way which he must be taken on this plea to have done, was, as the defendant also was, guilty of a conversion of them; and unless that case is also an authority binding upon us for the doctrine that the conversion by a pawnee of the thing pawned is not such an abuse of the bailment of pawn as annuls it, but that there remains in him, and in an assignee from him, and in an assignee from his assignee, and so on toties quoties, without limit as to the number of assignments or the consideration for them, an interest of property in the pawn which defeats the owner's right of possession, the plaintiff is entitled to our judgment.

As I read the case of Johnson v. Stear, 15 C. B. N. S. 330; 33 L. J. C. P. 130, and the case of Chinery v. Viall, 5 H. & N. 288; 29 L. J. Ex. 180, and Brierly v. Kendall, 17 Q. B. 937; 21 L. J. Q. B. 161, on the authority of which it proceeded, the judgments of the majority of the learned judges of the Court of Common Pleas, in the first of them, and the judgments of the Court of Exchequer, and of the Court of Queen's Bench, in the second and the third, are based on the principle that, in an action to recover damages for a conversion, it is

not an inflexible rule of law that the value of the goods converted is to be taken as the measure of damages; that when a suitor's real cause of action is a breach of contract he cannot by suing in tort entitle himself to a larger compensation than he could have recovered in an action in form ex contractu; and therefore that when a verdict is obtained against an unpaid vendor for the conversion of the thing sold by him, or against an unpaid pawnee for the conversion of the thing pledged to him, he is entitled to be credited, in the estimate by the jury, of the damages to be paid by him for the value of such interest or advantage as would have resulted to him from the contract of sale or the contract of pawn if it had been fulfilled by the vendee or pawnor.

That this was the ratio decidendi in these cases seems to me clear from the facts of Chinery v. Viall, and Brierly v. Kendall, which raised no question between the litigant parties in any respect analogous to the question which we in this case have to decide. In Chinery v. Viall, the plaintiff, who was the vendee of forty-eight sheep, for five only of which he had paid, under a bargain which entitled him to delivery of the whole lot before payment, brought his action against the vendor for a conversion by parting with the sheep to another purchaser. If the defendant's interest in the unpaid balance of the agreed price of the sheep had not been credited to him in the amount of damages, the plaintiff, who had only paid for five of them, would have pocketed the full value of the forty-three which had been converted.

In Brierly v. Kendall, an action of trespass, there was a loan of the defendant to the plaintiff secured by 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 until 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 considered in measuring the extent of the plaintiff's right to damages.

These cases are manifestly not in conflict with, if indeed they at all touch, the principle relied upon against the plea which is here demurred to, that if the pawnee converts the chattels pawned to him, the bailment is determined and the right of possession revested in the true owner of them.

In Johnson v. Stear, the defendant, a pawnee of dock warrants, had anticipated by a few hours only the time at which, under his contract with the owner of them, he might have sold and delivered them; he had applied before the time of action brought the proceeds of their sale to the discharge of the plaintiff's debt to him, or he held them specially applicable to that purpose, and the plaintiff, had he sued the defendant in contract for not keeping the pledge until default made, could not have proved that he had sustained any damage. The Chief

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Justice, speaking for himself and two of his learned brothers, did indeed say, that 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" (15 C. B. N. S. 334, 335; 33 L. J. C. P. 131); but he cannot be understood to have meant by the words "interest and right of property in the goods," and by the words "more than a mere lien" other than a special property," as defined by the authorities before referred to by me; viz., a real right or jus in re, a right of possession until default made, a right of retention or sale after default made; nor, as I think, to have intended more by the words "the wrongful act of the pawnee did not annihilate the contract between the parties," than that the contract, in the breach of which consisted the tort of which the plaintiff complained, must still be considered to subsist, at least for the purpose of being referred to for the measure of the damage sustained by the pawnor and the damages to be recovered by him.

The case before us differs, as I think, in essential particulars, as respects the principle upon which damages would have been measurable, had the action been in trover, from the case in the Common Pleas. The defendant, as assignee of the pawnee, could not surely have set up in mitigation of damages an interest derived by him from the pawnee before default made by the pawnor; the pawnee, by the express terms of the bailment to him, not having the right to dispose of the debentures by sale or otherwise until after default made. Besides, it is impossible to shut one's eyes to the broad distinction between the case of the sale a few hours too soon of a pawn which, as in the case of Johnson v. Stear, the pawnor "had no intention to redeem," the proceeds of the sale being devoted before action brought to discharge of the debt for which the pawn had been given as a security, and the abuse of a pawn by the pawnee in wrongfully, for his own purposes, placing out of his power, and out of the pawnor's power, to redeem the pawn should he have the means to do so.

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By the contract of bailment between the plaintiff and Simpson the proceeds of the sale of the debentures, which are the subject of this suit, had been specifically appropriated to the payment of the plaintiff's bill in the event of his not being able to meet it with other means. Simpson held the debentures in trust, should the bill not be paid, to sell them on the plaintiff's account, or allow the plaintiff to sell them or raise money on them to pay his bill. Instead of that, Simpson, before default made by the plaintiff, converted them to his own use, obtaining their agreed value in pledge from the defendant, and imposing upon the plaintiff the burthen of making other provision to meet his bill. By this act of Simpson the plaintiff, in my judgment, did in fact sustain damage, and at the maturity of the bill, if not before, to the full amount

of the current salable value of the debentures. I am at a loss to see how the conduct of Simpson in thus dealing with the debentures, and how the title of the defendant, claiming under him, are to escape the operation of the rule that if the pawnee, except conditionally (an exception for which the authority is but slender), parts with the possession of the pawn, he loses the benefit of his security (Ryall v. Rolle, 1 Atk. 165; Reeves v. Capper, 5 Bing. N. C. 136; Johnson v. Stear, 15 C. B. N. S. 330; 33 L. J. C. P. 130, per Williams, J.); or the operation of the maxim, nemo plus juris ad alium transferre potest quam ipse habet.

For these reasons, as it seems to me, the case of Johnson v. Stear ought not to govern our decision. It could not be followed by us as an authority in favor of the defendant without inattention to its true principle; viz., that between the parties to a contract the measure of damages for a breach of the contract must be the same, whether the form of action be ex contractu or ex delicto; and that in such a case, general rules applicable to the latter form, the only one competent for the redress of injuries purely tortious, are not to be strained to the doing of manifest injustice. It is open also, in a right estimate of it as an authority for the case in hand, to this observation: the interest of a plaintiff in the damages recoverable by him for a tort, which is in its true nature a breach of contract, is restricted by the implied stipulations of the contracting parties to the amount which, in the conscience of a jury, may suffice to give him an adequate compensation. The action of detinue for a chattel, of which the bailment has been abused, against a person not party to the contract of bailment, is not based upon a breach of contract, and not within the rules applicable to actions of tort which are based on breaches of contract. In detinue the plaintiff sues, not for the value tantamount of the thing detained from him, but for the return of the thing itself, which may to him have a value other and higher than its actual value; and only for its value if the thing cannot be delivered to him (Tidd's Forms, 8th ed. 339), and for damages for its detention and his costs of suit. A judgment to recover the value only has been reversed for error (Peters v. Heyward, Cro. Jac. 682); the integral undiminished thing itself, unaffected by countervailing lien or abatement of whatever kind, being the primary object of the suit. In an action of trover for the conversion by the pawnee of the subject of the bailment, the plaintiff, according to the judgment of the majority of the court in Johnson v. Stear, is entitled only to recover the amount, in money, of the damage which he proves himself to have sustained; in an action of detinue for the recovery from the assignee of the pawnee of the chattel pawned, and of which the pawn has been abused and forfeited, the plaintiff is entitled to recover the chattel itself, because it was a term of the contract of pawn that if the pawn should be abused by the pawnee his right to the possession of it should cease; and the defendant can have derived no right of possession from one whose own right of possession was determined by his attempt to transfer it.