goods as principals from Bayley. Second, that they dealt with them only as agents to their principal. This finding, as I have said, is in my judgment immaterial; whether a man who deals wrongfully with my goods be an agent or principal seems to me to be of no consequence.

The learned Judge then read the judgment of

CLEASBY, B.-I agree in the judgment of my brother Martin, but I wish to add a few words to shew that I agree substantially with the reasons given by the learned judges in the Court of Queen's Bench, and I do not think that when properly considered they are at variance with the finding of the jury.

It was an action of trover to recover the value of certain cotton, and there being a plea of not guilty, the question was, whether there was sufficient evidence of a conversion. The defendants were brokers, and the jury found that, in dealing with the cotton, the defendants had acted in their character of brokers, and not as principals, and the defendants contended that this finding when applied to the circumstances of the case, had the effect of negativing a conversion by the defendants.

In order to apply this finding, it is necessary to consider the facts as stated in the case on appeal; and I may as well at once indicate what my conclusion is, viz., that although the defendants never intended to buy on their own account, or to act in any other character than that of brokers, and although the sellers never understood them to buy on their own account, as the real principals, or to act in any other character than that of brokers (as the jury quite properly found), yet, by reason of the real principals not being known, and therefore not disclosed at the time when the bargain was made, the defendants necessarily became the parties to the contract, until the real principals being ascertained were named and adopted by the sellers, as the persons they would look to.

The plaintiffs were the owners of thirteen bales of cotton, of which a person named Bayley, who carried on business as a cotton broker under the firm of H. K. Bayley & Co., had obtained

possession by means of a fraud. Paragraph 8 states the transaction between Bayley and the defendants. It appears from the statement there, that the defendants, who were known to be acting as brokers, having been shewn samples of cotton marked P. P. ex Minnesota, agreed to buy the thirteen bales at the price of 114d. per lb., and they were to send the name of their principal in the course of the day. They also agreed at the same time to buy twentyfive other bales, and the following memorandum was handed by Bayley to the defendants

"We sell you thirteen bales 114d., twenty-five bales 11d. cash to-day per H. K. B. & Co."

It seems clear that this was not a conditional transaction (I mean conditional upon the name of the principal being sent in), but an absolute sale between Bayley and the defendants. The defendants being brokers wished to secure the sale of the cotton, and were content to bind themselves, having no doubt as to finding a purchaser, and Bayley was satisfied with the price and the responsibility of the defendants, although the defendants were not to buy as real principals and sell at a profit, but as brokers for a principal, whose name was to be given. It would be most unreasonable to suppose that Bayley was to take as principals any persons whatever whose names the defendants sent in, whether he approved of them or not, or that the contract should be conditional upon his approving of them. And, accordingly, it was not contended before us, that the transaction was a conditional one; but that the defendants were acting as brokers in the transaction, as was undoubtedly the

fact.

That being so, it was necessary that the defendants in order to find principals or (which is the same thing) purchasers, should require samples of the thirteen bales, the subject of the contract; and they apply to Bayley, as I apprehend they had a right to do, and their servants take the samples. It appears to me that it might well be contended that this taking the samples out of the thirteen bales which formed the subject of sale to them, was

exercising an act of ownership. For, as soon as the thirteen bales were ascertained, the defendants had a right to deal with them, subject to any claim which Bayley as unpaid vendor might insist upon, which he does not appear to have done.

But it is not necessary to insist upon this act of ownership, as a conversion, because what takes place afterwards on the same day makes the matter, in my opinion, quite clear. As soon as Nicholls, Lucas & Co. agree to buy the cotton, the defendants send a delivery order to Bayley in which the name of their principals, Nicholls, Lucas & Co., is given according to their engagement. This delivery order was to deliver to the bearer, who was Thompson, the servant of the defendants, and accordingly Bayley writes across it "To Joseph Thompson," and signs this, and Thompson indorses a receipt for the cotton-see paragraph 14. It thus appears that the delivery was not to Nicholls, Lucas & Co. (who would have to settle with the defendants for the price before they were entitled to delivery), but to the defendants. And, accordingly, after this has been done and the cotton has been weighed, Bayley sends in his invoice for the cotton, and although the name of Nicholls, Lucas & Co., the real principals, had been disclosed, the invoice is sent in to the defendants and they are made the debtors. The invoice is set out in paragraph 14 and headed thus

"Messrs. Francis Hollins & Co.,Bought from H. K. Bayley & Co."

It is plain, therefore, that Bayley refused to deal with Nicholls, Lucas & Co., as principals; and held the defendants the persons responsible to them, as buyers, which they were entitled to do, no principal having been disclosed when the contract was made.

It was, therefore, in this right as the persons entitled to the possession of the cotton as buyers from Bayley, that the defendants obtained possession of it for the purpose of transferring the property in it to their principals, Nicholls, Lucas & Co., and this dealing with the property all appears to be a clear conversion upon the authorities. The defendants acted as

brokers, but from the circumstances attending the contract, they became themselves interested in it.

I wish to add that, in my opinion, it is not necessary to overrule Greenway v. Fisher (10). That case is like the case of shoeing a horse, or mending a watch, and sending it home. It is true the goods were shipped in the name of the defendant, but no one would suggest that by writing his name in as owner he intended to claim the property or to deal with the property. It was only complying with the directions as to sending the goods back, and the entry of the name was a necessary form for that purpose.

In that case there was no intermeddling with the property in the chattel; in the present case all that is done is for the purpose of transferring the property.

The action of trover is not founded upon contract, or upon any particular relation of the parties, but upon property, and supposes the owners to have lost the goods, as the plaintiffs may in some sense be said to have done in this case, and the liability under it is founded upon what has been regarded as a statutory rule for the protection of property, viz., that persons deal with the property in chattels or exercise acts of ownership over them at their peril.

No one could dispute that if the defendants had made a sub-sale of the cotton they would have been responsible, though they bought it and paid for it in the ordinary way; and if they are not responsible in the present case, it follows that they could at their option select any persons they thought proper to deliver the cotton to, and make the persons so selected by them, the only persons responsible to the plaintiffs, the real owners.

CHANNELL, B.-I agree with the judg ment prepared by my brother Martin.

KELLY, C.B.-In this case, but for the finding of the jury, I should have been prepared to agree with the learned judges of the Court of Queen's Bench that there was evidence to be submitted to the jury of such a conversion by the defendants as might have sustained the action, though I am by no means satisfied that any such

verdict ought to have been found. But But after carefully considering the judgments. of the learned judges, I do not see that any effect is given to the finding of the jury, and it seems to be assumed that the defendants acted in the transaction as purchasers and sellers, and not as brokers.

It is necessary, therefore, to look to what the jury have expressly found, and consider its effect upon the case as it is now laid before us upon a motion to enter a verdict for the plaintiffs. The questions left by my brother Willes to the jury were, whether the thirteen bales were bought by the defendants as agents in the course of their business as brokers, and whether they dealt with the goods only as agents to their principals. And upon both points the jury found for the defendants.

Before, therefore, the defendants could be treated as principals in the sale and purchase of the goods, it seems to me that these findings of the jury should have been set aside. But not only has this not been done, but it was stated at the bar, and not denied, that a motion had been made in the Court of Queen's Bench to that effect, and a rule refused. The defendants, then, having throughout acted as brokers, and dealt with the goods only as agents to their principals, it would be to extend the doctrine of conversion far beyond the operation of the authorities cited at the bar to hold that they were more than conduit pipes (to use the expression of Lord Tenterden) between Bayley and Nicholls & Co., or that they were guilty of a conversion in merely negotiating the purchase and sale and assisting as agents in the transfer of the goods from Bayley to Nicholls & Co.

It is true that as Nicholls & Co. were not named at the time of the purchase, the vendor might have held the defendants personally liable, but as the price was paid to the vendor, and with the money of the real purchasers, the defendants receiving only their commission as brokers, it does not appear to me that this circumstance altered the character of the transaction and made the acts of the defendants amount to a conversion. I cannot think that this doctrine of conversion as applied to transactions effected

openly, bona fide and in the ordinary Course of business of merchants and brokers in London or Liverpool should be extended in the smallest degree beyond the necessary result of established decisions, and the logical and exhaustive judgment of my brother Brett, which I have had an opportunity of reading, seems to me to shew that brokers are no more within the scope of those decisions than carriers or packers. Why should a broker who negotiates a contract between buyer and seller in his character of broker, being the mere medium of communication between the one and the other, and deriving no other benefit from the transaction than his commission, be made liable for the whole value of the goods purchased and sold, any more than the packer who packs and ships the goods, or the railway company that conveys them from the seller's to the purchaser's premises? And that because the real owner has permitted himself to be defrauded of them by the pretended seller. Surely in such a case 'where one of two innocent parties must sustain a loss, it should be he who by having entrusted his property to an untrustworthy person has enabled or facilitated the commission of the fraud by which the loss had been occasioned.

It is true that a conversion has been correctly defined to be the exercising of dominion over property inconsistent with the title of the owner. But justice, expediency, public policy and common sense have introduced exceptions or qualifications to this doctrine. A carrier who delivers a quantity of merchandise to one who claims and receives it as owner; a packer who packs and prepares for shipment, and actually ships and consigns goods to one who receives and deals with them as his own, exercises dominion over them adversely to and inconsistent with the rights of the true owner. Why, then, should not a broker who interferes in the transfer of goods, not in his own right or on his own account, or claiming them as his own, but as the medium only between the vendor and the purchaser, deriving no benefit from the transaction except his commission, be held equally within the exception, which has been

compelling S. to pay to him, the defendant, the moneys he was liable under the guarantie to pay to the plaintiff :-Held, by COCKBURN, C.J., LUSH, J., and QUAIN, J., that the plea was good, and that in the case of a continuing guarantie for the honesty of a servant, if the master discovers that the servant has been guilty of acts of dishonesty in the course of the service to which the guarantie relates, and if, instead of dismissing the servant, as he may do at once and without notice, he chooses to continue him in his employ without the knowledge and consent of the surety, express or implied, he cannot afterwards have recourse to the surety to make good any loss which may arise from the dishonesty of the servant during the subsequent service.

Held, by BLACKBURN, J. (with some hesitation), and on the grounds expressed by MALINS, V.C., in Burgess v. Eve, 41 Law J. Rep. (N.S.) Chanc. 515, that the defen dant was entitled to judgment upon the demurrer to the plea.

:

Declaration for that heretofore, and before and at the time of the making of the promise of the defendant hereinafter mentioned, one John Smith was in the service and employment of the plaintiff in the way of her trade and business as a tea merchant (which she, the plaintiff, then during all the time aforesaid carried. on, and has from thence hitherto carried on, by and under the name and style of Messrs. Phillips & Co.), in the capacity of a van-man, and, during all the time aforesaid, it was the duty of the said John Smith, in the course of such service and employment, and in the capacity aforesaid, to receive and collect sums of money from the customers of, and for and on account of the plaintiff, and to pay over such moneys when so received and collected to the plaintiff; and that before and at the time of the making of the said promise, the plaintiff then had and held, for and on account of the said John Smith, as a security to the plaintiff, with the assent of the said John Smith, for the due and faithful performance by him of his said duties as such van-man as aforesaid, a large sum of money, of and belonging to the said John Smith; and that just before the making of the said

promise, the said John Smith requested the plaintiff to relinquish and give up the said security, and to pay over to him the said money of his so then held by the plaintiff as aforesaid, and to continue him in the said service and employ in the capacity aforesaid after, and notwithstanding, that the said money had been so paid over to him the said John Smith, which the plaintiff consented to do upon the defendant, in lieu of the said security, guaranteeing and promising to be answerable to the plaintiff for any loss, not exceeding. the sum of 507. in all, which she might from time to time, or at any time thereafter, sustain through any breach of such duty as aforesaid on the part of the said John Smith, in and during the course and continuance of his said service and employment by the plaintiff in such capacity as aforesaid. And thereupon, in consideration that the plaintiff would relinquish and give up the said security, by paying over to the said John Smith the said money of his so then held by the plaintiff as aforesaid, and would continue him the said John Smith in her said service and employ in the capacity aforesaid after, and notwithstanding, the said relinquishment of the said security by such payment to the said John Smith as aforesaid, the defendant guaranteed and promised the plaintiff to make good and be answerable to her for any loss not exceeding the sum of 501. in all, which she might from time to time, or at any time thereafter, sustain through any breach of such duty as aforesaid on the part of the said John Smith, in and during the course and continuance of his said service and employment by the plaintiff in such capacity as aforesaid. And the plaintiff avers that she, relying upon the said promise of the defendant, afterwards and under and in pursuance of the said agreement, paid over to the said John Smith the said money of his so then held by her the plaintiff as aforesaid; and that after the making of the said agreement she, the plaintiff, sustained loss to an amount exceeding the sum of 50l., through divers breaches of the said duty on the part of the said John Smith, in and during the course and continuance of the said service and employment by the plaintiff in the