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HALLIDAY v. HOLGATE.

EXCHEQUER. 1868.

(Reported L. R. 3 Ex. 299.) APPEAL from the judgment of the Court of Exchequer, discharging a rule to enter a verdict for the plaintiff in an action of trover brought by the creditors' assignee of one Bentley against the defendant to 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 shares in the Whitewell Mining Company, limited, which, by the articles of association of the company, were not transferable till the 2d of January, 1867, and Scholefield at the same time, by a memorandum in writing, agreed to execute a transfer of the shares to Bentley as soon as he legally could. Bentley at the same time bought ten other shares in the same company, and took a similar memorandum.

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 banded 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, MONTAGUE SMITH, and Lush, JJ.) was delivered by

WILLES, J We are all of opinion that this judgment must be affirmed. The action is brought by an assignee in bankruptcy to recover the value of certain scrip certificates of the bankrupt, alleged to have been converted by the defendant. The defendant was under advances to the bankrupt, in respect of which the bankrupt pledged to the defendant the certificates in question. The bankrupt became in default, and absconded, and the defendant thereupon sold a part of the certificates sufficient to repay the whole or part of the amount due to him. The assignee seeks to recover either the whole value or nominal damages in respect of the wrong done by the sale. As to the claim for the whole value, it is certainly a strong contention. The scrip certificates were in the hands of the defendant as a security for money due, and the assignee has sustained no actual damage, for the debt could have been paid no otherwise, yet the assignee seeks to recover the whole value as if at the time the certificates were his own. It does not require much argument to show that there is no principle for such a rule, and we should not be disposed to act upon it unless we are compelled by some authority to do so. But the authorities invite us to do the reverse, for Johnson y. Stear, 15 C. B. (N. S.) 330 ; 33 L. J. (C. P.) 130 shows that if any action lies at all in such a case, the verdict can only be for nominal damages, and that an allowance must be made for the amount of the debt which has been thus satisfied, that being the amount which the pledgor or his assignee would have had to pay before he could have required the article to be delivered up. We are quite satisfied to abide by that decision.

But it has been argued that the plaintiff is at any rate entitled to ot online rs to aurrer nominal damages, for that a conversion was committed by the sale of muntimzumirudd darathe certificates. That sale, it is contended, had the effect of putting an aquina 9.vs. 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 be became entitled to the certificates by virtue of the general property which then revested in him. This reasoning proceeds upon a somewhat suhtle 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

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

HALLIDAY v. HOLGATE.

EXCHEQUER. 1868.

(Reported L. R. 3 Ex. 299.) APPEAL from the judgment of the Court of Exchequer, dis. a rule to enter a verdict for the plaintiff in an action of trover by the creditors' assignee of one Bentley against the defe recover the value of certain shares, the defendant pleading other pleas, not possessed.

On the 30th of April, 1866, Bentley bought of one Schole shares in the Whitewell Mining Company, limited, which ticles of association of the company, were not transferable January, 1867, and Scholefield at the same time, by a mer writing, agreed to execute a transfer of the shares to Be as he legally could. Bentley at the same time bought te in the same company, and took a similar memorandum.

In June, 1866, Bentley borrowed of the defendant £3 promissory note payable on demand, and on the security five shares above mentioned, and he at the same time defendant the two agreements, promising to deliver to h soon as he received it. On the 16th of January, 1867, to the defendant the fifteen scrip certificates for the first and received back the agreement relating to the ten she £100 on account of the debt.

On the same day Bentley's firm stopped payment; wards adjudicated bankrupts, and the plaintiff was app assignee, Bentley absconding before passing his fin The defendant, after the bankruptcy, sold the scrip of shares, but it did not appear that he had made any given notice to, either Bentley or the plaintiff, the assig of the scrip for the ten shares was admitted to be £200

The cause was tried before Mellor, J., at the I Assizes, 1867, and the learned judge nonsuited the pla leave to him to move to enter a verdict for him for £20. sum as the court should think fit. A rule was obtain and was, after argument in the court below, in Hilary charged on the authority of Donald v. Suckling. La 585. The plaintiff appealed.

Jordan, for the appellant.
Quain, Q. C. (Herschell with him), was not called

The judgment of the court (WILLES, BLACKBURN, KI
GUE SMITH, and LUSH, JJ.) was delivered by

WILLES, J We are all of opinion that this jade

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ndant pleaded not that the plaintiff at - Vercers, and that at is trust to sell his goods ise in tempus, and that

claration, and carried *, if the defendant were Shuttleworth prayed judg

use the declaration was ihe defendant had custody (ther he had custody, and as sheep to compasture, &c.

; and the justices held that RIAM said that the defendant or possession; and judgment ; 21 H. 7, 14. And WINDHAM s goods, without question it was -ON absent), and the law will not le possession of the plaintiff'; and 'n and rehearsed the case, and said, I nor special property in the goods, il property, and special he had not,

trespass if they were taken away, ..lies against him, if he take them ; - felony, for he hath no property in si accordingly.

Pirst", i Leon. 87. ,, card to the custody of servants. It is a well

itt i servant who criminally converts property of · iustor as servant is guilty of theft, because he

from his master's possession. This is equivalent ..latory of his master's property as servant, has 115 so stated in the Year Books. :ling to which, if the servant receives the thing from

bent has the possession, and so cannot commit theft,

cines. For the distinction taken in them is, that ... with his master, the latter retains possession ; but ir to ride to market, or gives him a bag to carry to

.tp master's possession and in the servant's. In this ir vild not now prevail. But one half of it, that a guest 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

d be against thereby doo

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.

E. Actions of Bailor against Bailee.

LIT. $ 71. . . . If 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.

ANONYMOUS.
Common Pleas. 1587.

(Reported Moore, 248, pl. 392.] 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 clothis 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, tres. pass vi et armis lies, because the trees are not delivered to him.

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