fendants, having made demand for the hops, brought trover; but it was held that they could not recover, on the ground that they had no right of possession. The court said that in such cases the seller had a lien upon the goods, and, consequently, a right of possession; and, therefore, that the buyer, having no right of possession, could not maintain trover. This would also imply that trover cannot always be brought for an act of conversion. But it is to be observed of this case that there was, in fact, no conversion or act of dominion in the transaction; for there was a usage of the trade that the goods should be paid for within a certain time, and Saxby had made default. And, though the jury had found that the defendants had not rescinded the sale, they had a right to rescind, which Saxby had recognized by his assent to the first sale, and which they had merely again availed themselves of (despite the unintelligible verdict of the jury) after the bankruptcy. And the default of the purchaser was one of the grounds taken in Chinery v. Viall for distinguishing Milgate v. Kebble. In Wilmshurst v. Bowker, 5 Bing. N. C. 541, s. c. 7 Scott, 561, also, the plaintiffs were in default. There is, perhaps, no express decision, made upon argument, that an act of conversion does not in all cases give rise to a right of action in trover; but the implied doctrine of the above cases renders the point worthy of further examination. It has, indeed, been held in several recent English cases, contrary to the opinion which previously prevailed, that the sale of a pledge by the pledgee, or a repledge of the security for a larger sum than that of the original debt, be fore the maturity of that debt, would not enable the pledgor to maintain detinue or trover. Donald v. Suckling, principal case, supra, p. 394; Halliday v. Holgate, Law R. 3 Ex. 299, in Ex. Ch. See also Johnson v. Stear, 15 Comb. B. N. s. 330; Baltimore Ins. Co. v. Dalrymple, 25 Md. 269; Bulkeley v. Welch, 31 Conn. 339. Contra, Story, Bailments, §§ 303, 308, 327; Clark v. Gilbert, 2 Bing. N. C. 343, 357; Chinery v. Viall, 5 Hurl. & N. 288, 293; Bailey v. Colby, 34 N. H. 29, 35. But the statements in these latter cases are merely dicta. In Halliday v. Holgate it was held in the Exchequer Chamber that not even nominal damages could be recovered in trover in such cases, on the ground that the act of sale had not revested in the pledgor the right of possession; and this was the ruling in the principal case, Donald v. Suckling. A pledge, it was said in both of these cases, was something more than a mere lien; and a sale by a pledgee would not annihilate the contract, as it would where the seller had only a lien upon the goods in his possession. In Donald v. Suckling, it will be observed that Cockburn, C. J., said: "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." That is, the pawnee may treat the pledge as his own until the pawnor offers to redeem it; and, if he never offers to do so, there will be no conversion, though there was a sale or repledge of the goods before the debt became due. So Willes, J., delivering the judgment in Halliday v. Holgate, said that in the case of a pledge the right of property vested in the pledgee so far as was necessary to secure the debt. "It is true," he continued, "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 interest." It is clear, therefore, that these cases are no authority for the position that there may be a conversion without a right of action in trover; for the courts held that the defendants had not been guilty of conversion. Upon principle it is difficult to understand how there can be a conversion in such cases without this right of action. The fallacy on this point consists in an incorrect apprehension of the term "right of possession." In Milgate v. Kebble, supra, Erskine, J., says: “Under a plea of 'not possessed' in trover, the plaintiff must prove actual possession, or a right of immediate possession. Here it is conceded that there was no right of immediate pos session." This overlooks the situation of the parties and the nature of the act of dominion. One who takes possession of goods under a qualified right agrees to hold them in conformity to that right, whether he be a pledgee, an unpaid vendor, or a simple bailee without interest. It is equally clear that if he renounce his possession the owner may retake his goods, if he can do so without a breach of the peace; in other words, by a renunciation the party loses, pos and the owner regains, his right of session, not the actual possession, for that is not necessary, but the right of possession, which is sufficient in trover. Now, if a bailee, having a less interest than a pledgee, attempt to sell the property in his custody, what is the nature of the act? It is nothing less than a renunciation of any qualified interest, for the act is an assertion of ownership. In the case of an unpaid vendor, like the defendant in Milgate v. Kebble, it is a repudiation of the original sale; the vendor ignores that transaction, and puts himself in the position of never having had the negotiation. In other words, he renounces the right of possession under which the goods remain in his custody; and that right thereafter is revested in the owner, giving him the requisite ground upon which to sue. It is not the sale, however, that revests the right of possession in the owner of the chattel, but the assertion of dominion by the bailee. By the sale, indeed, he could not acquire the right; for if he had not obtained it before that act, the sale would transfer it to the purchaser, so that neither party would be liable in trover. The attempt to sell, and not its execution, is the renunciation; and this it is that divests the bailee, and revests in the owner the right of possession. This will clearly appear by considering the case of a valid agreement by the bailee to sell the goods at a future day. It is clear that in such a case the owner would not be required to wait till the agreement was performed before suing. The above view is the legitimate result of the doctrine of Sargent v. Gile, 8 N. H. 325, confirmed in Bailey v. Colby, 34 N. H. 29, and in other cases cited in the earlier part of this note. Indeed, if this view were not correct, the action of trover could be maintained only in those cases where the defendant either was a trespasser in getting possession of the goods, or was a bailee without interest, and subject to be dispossessed at the will of the owner; for if the defendant was rightfully in possession, and had a lien upon the goods at the time of the sale, the plaintiff could not acquire the right of possession necessary for the action. If it be thought that the reasoning that the sale of the chattel is necessarily a renunciation of the right of possession under the plaintiff is too great a refinement, the answer is that, at all events, the almost universal doctrine of the courts has been that a sale by a bailee (not a pledgee) terminates the bailment, for whatever reason, so as to give the owner of the goods the right of possession. It was so decided in Cooper v. Willomatt, 1 Com. B. 672. In that case goods were sold by one Savage to the plaintiff, who thereupon allowed Savage the use of them at a weekly rent, upon his undertaking to deliver them on demand. Savage afterwards sold and delivered the goods to the defendant, who purchased them in good faith. It was held that the plaintiff could maintain trover. The defendant contended that the effect of the agreement to give Savage the use of the goods was that of a demise of the property, in which case trover could not be maintained, on the ground that the plaintiff would not have been entitled to the possession at the time of suit; but Tindal, C. J., answered this by saying that even if that were the proper construction of the agreement, it was such a demise as might at any time be terminated by the plaintiff. And the demand upon the defendant had put an end to the tenancy as well as if it had been made upon Savage. But even if the tenancy could not be considered as terminated, the learned Chief Justice thought the action maintainable, upon the authority of Loeschman v. Machin, the principal case; and of this opinion were the other judges. See also to the same effect, Coffey v. Wilkerson, 1 Met. (Ky.) 101; Buckmaster v. Mower, 21 Vt. 204; Crocker v. Gullifer, 44 Maine, 491; Bailey v. Colby, 34 N. H. 29; Farrant v. Thompson, 5 Barn. & Ald. 826; Emerson v. Fisk, 6 Green, 200; Galvin v. Bacon, 2 Fairf. 28; Johnston v. Whittemore, 27 Mich. 463. The difficulty in Milgate v. Kebble arose, perhaps, from the supposition that in an action of trover the plaintiff, if he succeed, must be allowed the full value of the goods, regardless of the sum due; for which there has been some authority. See cases considered by Williams, J., in Johnson v. Stear, 15 Com. B. N. s. 330, 337. But while it is true that the measure of damages in trover covers the value of the goods, this is only a prima facie presumption, and the more recent cases hold that the amount may be reduced by the sum remaining due to the defendant; so that the plaintiff in fact recovers no more than the amount of the loss. Chinery v. Viall, 5 Hurl. & N. 288; Johnson v. Stear, 15 Com. B. N. s. 330; Brierly v. Kendall, 17 Q. B. 937; Neiler v. Kelley, 69 Penn. St. 403; Work v. Bennett, 70 Penn. St. 484. See also Story, Bailments, § 315; Clark v. Dearborn, 103 Mass. 335; Whitney v. Beckford, 105 Mass. 267. Just this difficulty has caused the suggestion to be made in several of the cases that the plaintiff's right of action for the wrongful sale under such circumstances is an action on the case for the breach of contract as to the holding, where he can recover only for his actual loss. See Bloxam v. Sanders, 4 Barn. & C. 941, 949; Johnson v. Stear, 15 Com. B. N. s. 330, 335; Halliday v. Holgate, Law R. 3 Ex. 299, 302; also the remark of Cockburn, C. J., in Donald v. Suckling, supra, p. 419. But the difficulty is removed by the assimilation of the damages in the two actions. As to the bailee, it therefore becomes of little importance whether his act in cases of this kind (that is, where he has a lien, but nothing more) be considered a conversion or not, for he is at all events liable in contract for the actual damage done by his breach of trust, and the bailor can recover no greater damages in trover. But the effect of Milgate v. Kebble does not stop here; for, if there be no conversion in a case of this kind, the bailee's right of possession is transmitted to the purchaser. Trover, therefore, could not be maintained against him; and, as he is in no situation of contract with the bailor of the goods, he takes the bailee's interest in the property, and is clear of all present liability. If, however, the view we have taken be correct, supported as it is by the great preponderance of authority, it follows that, as the act of the bailee reinvested the owner with the right of possession, nothing but the actual possession passes to the purchaser, and the owner can follow the property, and, if it be withheld from him, recover its full value in trover upon his right to the possession of it. cases; it is often equally an act of dominion, amounting to a conversion, to attempt to aliene a portion of the goods. In Gentry v. Madden, 3 Pike, 127, the defendant had found a raft of timber on a sandbar in a river, had taken possession of it, hired a person to assist in removing part of it, and sold that person his interest in the residue, reserving to himself the portion removed; and it was held that this was a conversion of the whole raft. But upon general principles, where there is a distinct bailment of several different articles, though all be bailed at the same time, a conversion of one will not operate as a conversion of all. How it would be where the bailment was tortious, quære? See Gentry v. Pike, supra. The principle seems to be that where te act of misappropriation implies an act of dominion over the whole chattel, it is a conversion of the whole. See Bowen v. Fenner, 40 Barb. 383; Richardson v. Atkinson, 1 Strange, 576. But see Philpott v. Kelley, 3 Ad. & E. 106, 116, 117. (e.) Owner allowing another to sell his Goods. If the owner of goods stand by and see them sold as the property of another without asserting his title to them, or if, upon inquiry by one whom he knows to be about purchasing them, he represents them to belong to another, he will not be able to take them from the purchaser, or recover their value in trover; though the party selling had no authority to make the sale. Heane v. Rogers, 9 Barn. & C. 586; Pickard v. Sears, 6 Ad. & E. 469; Stephens v. Baird, 9 Cowen, 274; Dezell v. Odell, 3 Hill, 215; Bigelow, Estoppel, 473 et seq. And it seems that in such case the purchaser could himself maintain trover against such owner, since in a contest between them in regard to the goods the latter would be estopped to assert a title to them.. But a subsequent purchaser under an execution against the true owner could maintain trover from one who had previously purchased under the circumstances above mentioned. Richards v. Johnston, 4 Hurl. & N. 660. The reason of this probably is, that the estoppel could not operate to transmit any title to the first purchaser, but merely operated to preclude the owner from asserting his title against him. The second purchaser, however, acquires the title to the goods; and, as the estoppel of the owner is not an interest in the property, it is not transmitted under the sheriff's sale. Nor is a purchaser, it would seem, in the situation of a privy to the vendor, in such cases; being unlike an assignee, who is but the representative of the assignor. But the reason given by the court in the case cited was, that the sheriff was not bound by the estoppel against the owner, and the purchaser claimed adversely to, and not under, the latter. If this be the true reason, a purchaser from the owner, though without notice of the previous transaction, could not claim the goods, because of the estoppel. Sed quære. (f) Surpassing Limit of Authority to sell. A person having due authority to sell the property of another may also be guilty of conversion. Such will be the case if he fail to conform in a material particular to the terms of his authority. It has been so held where the defendant had receipted to the plaintiff for certain shares of stock to be sold on commission, and, instead of selling, the defendant exchanged the shares for other property. Haas v. Damon, 9 Iowa, 589. But this may be doubted if the transaction was within the general scope of his authority, so as to give a good title to the party with whom he exchanged. Clearly, if an agent merely sell at a lower price than his instructions allowed, this will not amount to a conversion, though he becomes liable for misconduct. Sargeant v. Blunt, 10 Johns. 74. See Cairnes v. Bleecker, 12 Johns. 300. But where the owner of a promissory note past due put it into the hands of B. for collection, and B. sold it to S., who converted it to his own use, it was held that the owner might maintain trover against S. Seago v. Pomeroy, 46 Ga. 227. (g) Pledging Goods. Another illustration of an act of dominion may be found in the case of a pledging of property by one having no authority. In Thrall v. Lathrop, 30 Vt. 307, the plaintiff brought trover for a heifer which had been in possession of one Preston on hire. Preston borrowed money of the defendant and gave him a bill of sale of the heifer in security of payment. He afterwards borrowed money of the plaintiff, and gave him also a bill of sale of the animal; the plaintiff not knowing that this was the heifer which in fact belonged to him. The heifer remained in the possession of Preston until taken by the defendant, when the latter was informed by the plaintiff that the property was his, under his bill of sale. It was held that the plaintiff was not estopped to claim the heifer, upon the plain principle that an admission made in ignorance of one's rights is not binding. In Carpenter v. Hale, 8 Gray, 157, goods intrusted for a special purpose were pledged by the party in possession; and it was held that the pledgee, after notice of the true ownership and a demand of the property, was liable in |