Q. B.]

DONALD v. SUCKLING.

[Q. B.

but that there remains in him and in an assignee | him on a given day, with a power to sell in case of from him, and in an assignee from his assignee, and default on that day, created an interest and a right so on, toties quoties, without limit as to the number of property in the goods which was more than a mere of assignments or the consideration for them, an lien, and that the wrongful acts of the pawnee did interest of property in the pawn which defeats the not annihilate the contract between the parties and owner's right of possession, the plt. is entitled to the interest of the pawnee in the goods under that our judgment. As I read the case of Johnson v. Stear, contract;" but he cannot be understood to have and the cases of Chinnery v. Viall, 5 Hur. & Nor. 293; meant by the words "interest and right of property 2 L. T. Rep. N.S. 466, and Brierly v. Kendall, 17 Q. B. in the goods," and by the words "more than a mere 937, on the authority of which it proceeded, the lien," other than a special property as defined by the judgment of the majority of the learned judges authorities before referred to by me, viz., a real of the Court of C. P. in the first of them, and the right or jus in re, a right of possession until default Court of Q. B. in the second and third, are based on made, a right of retention or sale after default made, the principle, that in an action to recover damages nor, as I think, to have intended more by the words, for a conversion it is not an inflexible rule of law "the wrongful act of the pawnee did not annihilate that the value of the goods converted is to be taken the contract between the parties," than that the conas the measure of damages; that when a suitor's real tract, in the breach of which consisted the tort of which cause of action is a breach of contract, he cannot the pit. complained, must still be considered to subby suing in tort entitle himself to a larger compen- sist at best for the purpose of being referred to for sation than he could have recovered in an action the measure of the damage sustained by the pawnor in form ex contractu; and, therefore, that when a and of the damages to be recovered by him. The verdict is obtained against an unpaid vendor for the case before us differs, I think, in essential particonversion of the thing sold by him, or against an culars as respects the principle upon which damages unpaid pawnee for the conversion of the thing would have been measurable had the action been in pledged to him, he is entitled to be credited in the trover, from the case in the Common Pleas. The estimate by the jury of the damages to be paid by deft., as assignee of the pawnee, could not surely him for the value of such interest or advantage as have set up, in mitigation of damages, an interest would have resulted to him from the contract of derived by him from the pawnee before default made sale or the contract of pawn, if it had been fulfilled by the pawnor, the pawnee, by the express terms of by the vendor or pawnor. That this was the ratio the bailment to him, not having a right to dispose of decidendi in these cases seems to me clear from the the debentures by sale or otherwise until after facts of Chinnery v. Viall and Brierley v. Kendall, default made. Besides, it is impossible to shut one's which raised no question between the litigant parties eyes to the broad distinction between the case of a in any respect analogous to the question which we sale a few hours too soon of a pawn which, as in in this case have to decide. In Chinnery v. Viall, the case of Johnson v. Stear, the pawnor had no the plt., who was the vendee of forty-eight sheep, intention to redeem, the proceeds of the sale being for five of which he had paid under a bargain which devoted, before action brought, to the discharge of entitled him to the delivery of the whole lot before the debt for which the pawn had been given as a payment, brought his action against the vendor for security, and the abuse of a pawn by the pawnee conversion by parting with the sheep to another pur- in wrongfully, for his own purposes, placing out of chaser. If the deft.'s interest in the unpaid balance his power and out of the pawnor's power to redeem of the agreed price of the sheep had not been credited the pawn, should he have the means and mind to do to him in the amount of damages, the plt., who had So. By the contract of bailment between the only paid for five of them, would have pocketed the plt. and Simpson, the proceeds of the sale of the value of forty-three which had been converted. In debentures, which are the subject of this suit, had Brierly v. Kendall, an action of trespass, there was a been specifically appropriated to the payment of the loan by the deft. to the plt. secured by a bill of sale plt.'s bill in the event of his not being able to of the plt.'s goods, in which was a reservation to meet it with other means. Simpson had the the plt. of a right to the possession of the goods debentures in trust, should the bill not be paid, until he should make default in some payment. to sell them on the plt.'s account, or allow the plt. Before any default the deft. took the goods and sold to sell them, or raise money on them to pay his bill. them. For this wrong he was liable in trespass, Instead of that, Simpson, before default made by but the measure of damages was held to be not the the plt., converted them to his own use, obtaining value of the goods, but the loss which the plt. had their agreed value in pledge from the deft., and really sustained by being deprived of the possession. imposing upon the plt. the burden of making other The wrongful act of the deft. did not annihilate his provision to meet his bill. By this act of Simpson interest in the goods under the bill of sale, and such the plt., in my judgment, did in fact sustain damage, interest was considered in measuring the extent of and at the maturity of the bill, if not before, to the the plt.'s right to damages. Those cases full amount of the current saleable value of the manifestly not in conflict with, if indeed they at all debentures. I am at a loss to see how the conduct touch, the principle relied upon in the plea which of Simpson in thus dealing with the debentures, is here demurred to, that if the pawnee converts the and how the title of the deft. claiming under him, chattels pawned to him, the bailment is dishonoured, are to excuse the operation of the rule, that if the and the right of possession revested in the true pawnee, except conditionally (an exception for owner of them. In Johnston v. Stear, the deft., a which the authority is slender), parts with the pawnee of dock warrants, had anticipated by a few possession of the pawn, he loses the benefit of his hours the time at which by his contract with the security on the operation of the maxim, nemo plus owners of them he might have sold and delivered juris ad alium transferre potest quam ipse haberet. them; he had applied, before the time of action For these reasons, as it seems to me, the case of brought, the proceeds of the sale to the discharge of Johnson v. Stear ought not to govern our decision. It the plt.'s debt to him, or he held them specially could not be followed by us as an authority in favour applicable to that purpose, and the plt., had he sued of the deft. without inattention to its true principles, the deft. in contract for not keeping the pledge until viz., that between the parties to a contract, the default made, could not have proved that he had measure of damage for breach of the contracts must sustained any damage. The Chief Justice, speaking be the same whether the form of action be er confor himself and two of his learned brothers, did tractu, or ex delicto, and that in such a case general indeed say that "the deposit of the goods in ques- rules applicable to the latter form, the only one tion with the deft. to secure repayment of a loan to competent for the redress of injuries purely tortious,

are

Q. B.J

DONALD v. SUCKLING.

[Q. B.

are not strained to the doing of manifest injustice. Į Erskine, a jurist of nearly equal eminence, that "in It is open also, on a right estimate of it as an a pledge of movables, the creditor who quits posauthority for the case in hand, to this observation. session of the subject loses the real right he had The interest of a plt. in the damages recoverable by upon it." I think the bailment to Simpson was him for a tort, which is in its true nature a breach determined by the pledge by him to the deft. under of contract, is restricted by the implied stipulations the circumstances stated in the plea; that both of of the contracting parties to the amount which, in them have been guilty of a conversion; that the the conscience of a jury, may suffice to give him an plt. might, as Williams, J. said in the case of adequate compensation. The action of detinue for Johnson v. Stear, lawfully, should the opportunity a chattel of which the bailment is not based upon offer, resume the possession of the debentures, and a breach of contract is not within the rules applic- hold them free from the bailment, and may, the able to actions of tort, which are based on breaches deft. being remitted to his remedy against Simpson, of contract. In detinue the plt. sues not for damages and Simpson to his remedy upon the bill, recover tantamount to the value of the thing detained, them, or their full value if they cannot be delivered but for the return of the thing itself, which may to to him, in this action of detinue. him have a value other and higher than its actual value; and only for its real value if the thing can- MELLOR, J.-In an action of detinue for four not be delivered to him, and for damages for its debentures of the British Slate Company (Limited) detention and costs of suit. A judgment to re- the deft. pleaded that the plt. had deposited them cover the value only has been reversed in error, the with Simpson as security for due payment at integral undiminished thing itself, unaffected by maturity of a bill of exchange payable six months countervailing lien or abatement of whatever kind, after date, indorsed by the plt. and discounted by being the primary object of the suit. In an Simpson, upon the agreement that Simpson should action of trover for the conversion by the pawnee of have full power to sell or otherwise dispose of the the subject of the bailment, the plt., according to the debentures if the said bill was not paid at maturity. judgment of the majority of the court in Johnson v. It then alleged that the bill was not paid at Stear, is entitled only to recover the amount in money maturity or at the commencement of the suit, and of the damage which he proves himself to have susthat before the detention and commencement of tained. In an action of detinue for the recovery this suit Simpson deposited the debentures with the from the assignee of the pawnee of the chattel deft., to be by him held as security for and until pawned, and of which the pawn has been abused the repayment of certain money lent by deft. to and forfeited, the plt. is entitled to recover the Simpson upon the security of the debentures, which chattel itself, because it was a term of the contract sum of money was then due and unpaid. To this of pawn that, if the pawn should be abused by the plea the plt. demurred, and upon demurrer I think pawnee, his right to the possession of it should that we must assume that the pledging of the decease, and the deft. can have derived no right of bentures by Simpson to the deft. took place before possession from one whose right of possession was default was made by the plt. in payment of the bill determined by his attempt to transfer it. Unless, of exchange at maturity, and that we must also therefore, we were prepared to hold, in disregard of assume that the money for which the debentures the clearly expressed opinion of Story, and of Wil- were pledged by Simpson as a security to the deft. liams J., in Johnson v. Stear, that detinue can in no was of larger amount than the bill of exchange dişcase lie for an unredeemed pawn, however much the counted by Simpson for the plt. The question thus bailment of it may have been abused, we are not at raised by this plea is, whether the pawnee of the liberty to apply the ratio decidendi in Johnson v. Stear debentures deposited with him as a security for the to the case before us. It raises a strong presump- due payment of money at a certain time does, by tion against the defence set up in this plea that re-pledging such debentures, and depositing them nothing having the slightest resemblance to the with a third party as a security for a larger amount, right of possession which is claimed for the assignee before any default by the pawnor, make void the of a pawnee is to be found in the copious title of the contract upon which they were deposited with the Digest "De Pignoribus et Hypothecis, &c.;" or in the pawnee so as to vest in the pawnor an immediate five following titles, on the contract of pawn and right to the possession thereof, notwithstanding that hypothec and its incidents, or in the title "De Pig- the debt due to him by the original pawnee renoribus actione vel contra," or in the works of any mains unpaid. This result seems prima facie to be English, French, or Scotch jurist. The dictum of disproportionate to any injury which the pawnor the majority of the court in the case of Morse v. would be likely to sustain from the fact of his Conham, that the pawnee has such an interest in the debentures having been re-pledged before default pawn as he may assign over, was not the point made. Still, if the principles of law, as laid down decided in that case, nor, as it seems to me, a point in decided cases, specifically support the proposition essential to its decision; the point decided was that above stated, this court must give effect to them. the surrender by the plt. of a chattel pawned to him There is a well-recognised distinction between a by a third person was a good consideration for a pro- lien and a pledge as regards the powers of a person mise by the deft. to pay the debt for which it had entitled to a lien and a person who holds goods been given as security. It does not seem to follow upon an agreement of deposit, by way of pawn or from that decision that the surrenderee thereby pledge, for the due payment of money. In the case acquired such an interest in the pawn as would enable of simple lien, there can be no power of sale or him to defend an action of detinue at the suit of a true disposal of the goods which is inconsistent with the owner, the reversion of whose rights of property and retention of the possession by the person entitled to possession was, unless they meant to rob him, the the lien; whereas, in the case of a pledge or pawn real object of the transaction. The inference drawn of goods, to secure the payment of the money on a from this very obscure and superficially reasoned certain day on default by the pawnor, the pawnee case, in favour of the deft.'s plea, is wholly recon- may sell the goods deposited to realise the amount, cilable with the doctrine of Domat, the highest and become a trustee for the overplus for the authority on all questions depending, as this ques-pawnor; or, even if no day of payment be named, tion does, upon the rules and principles of the Roman civil law, that the bailment of the hypotheque and gage lasts only as long as the thing hypothecated is in the hands of the person who takes it for his security; and, with the doctrine of

It

he may, upon waiting a reasonable time, and taking
the proper steps, realise his debt in like manner.
is said by Story, J. that "the foundation of the
distinction rests in this, that the contract of
pledge carries an implication that the security

DONALD v. SUCKLING.

Q. B.]

(Q. B.

shall be made effectual to discharge the obli- of pledge to secure the payment of money. In gation, but in the case of a lien nothing is Legg v. Evans the nature of a lien is defined to be supposed to be given but a right of detention a personal right which cannot be parted with; but or retainer unless under special circumstances. The the contract of pledge carries an implication that question then arises, is the right of retention in a the security shall be made effectual to discharge case of a lien either by a custom or contract other- the obligation. In each case the general property wise different from a deposit by way of pledge for remains in the pawnor; but the question is as to securing payment of money than in the incidental the nature and extent of the interest or special power of sale in the later case on condition broken? | property passing to the bailee in the two cases. In other words, on a contract of pledge is it Story, J., in his treatise on Bailments, thus derequired that the pledgee shall not part with the scribes the right and interest of the pawnee: "He possession of the thing pledged until default in may by the common law deliver over the pawn into payment? If so, is that of the essence of the con- the hands of a stranger for safe custody without tract so that the violation of it makes void the con- consideration, or he may sell or assign all his tract? In the case of Legg v. Evans and another, interest in the pawn, or he may convey the same 6 Mee. & W. 42, an action of trover having been interest conditionally by way of pawn to another brought against the deft., the sheriff of Middlesex, person without in either case destroying or invalito recover the value of some pictures and picture- dating his security; and if the pawnee should frames, the defts. justified under an execution undertake to pledge the property (not being negoagainst the goods and chattels of the plt., the plt. tiable securities) for a debt of his own, or to make replied setting up a lien in respect of work done a transfer thereof to his own creditor, as if he were upon such goods and chattels which had been the absolute owner, it is clear that in such a case delivered to him in the way of his trade by one he wou d be guilty of a breach of trust, and his Williams, and further set out an agreement between creditor would acquire no title beyond that held by the plt. and Williams that the plt. should draw and the pawnee." The only question is, whether the indorse certain bills of exchange for the use of creditor should be entitled to retain the pledge Williams, and should have a right to hold the said until the original debt was discharged, or whether goods for securing the payment by Williams of the the owner might recover the pledge in the same amount of the said bills of exchange, and alleged manner as in the case of a naked tort, without any that the said money and bills of exchange then qualified right in the first pawnee. In McCombie remained wholly unpaid. The Court of Ex. held, v. Davis, 7 East 5, it appeared that a broker had on demurrer to the replication, that it was a good for a debt of his own pledged certain tobacco of answer to the plea, and Parke, B. is reported to have his principal's, upon which he held a lien, and in an said: "If we consider the nature of a lien, and the action brought by the principal against the deft. in right which it confers, it will be evident that it trover for the tobacco, Lord Ellenborough being of cannot form the subject-matter of a sale. A lien opinion "that the lien was personal, and could not is a personal right which cannot be parted with, be transferred by the tortious act of the broker and continues only so long as the possessor holds the pledging the goods of his principal," the plt. goods. It is clear therefore that the sheriff cannot obtained a verdict, and upon motion for a new trial sell an interest of this description, which is a per- Lord Ellenborough said that, "nothing could be sonal interest in the goods; " and further on he clearer than that liens were personal and could not says: "Here the interest cannot be transferred to be transferred to third persons by any tortious any other individual; it continues only as long as pledge of the principal's goods;" but afterwards the holder keeps possession of the subject-matter of added that he would have it fully understood that the lien either by himself or his servant." In that his observations were applied to a tortious transfer case there was superadded to the lien, in respect of of the goods of the principal by the broker underwork done, an agreement that the person entitled to taking to pledge them as his own, and not to the the lien should have a right to hold the said goods case of one who, intending to give security to and chattels for securing the payment of the bills of another to the extent of his lien, delivers over the exchange therein mentioned, and which then actual possession of the goods on which he has the remained wholly unpaid. That case was treated as lien to that other, with notice of his lien, and apa simple case of lien or right to hold, to secure the points that other as his servant to keep possession payment not only of the amount due for work done of the goods for him." It would therefore seem on the goods by Williams, but also of the bills drawn that in the case of a broker or factor for sale, before and indorsed by him. It is therefore an authority to the Factor's Act, although he had no power to the effect that in the case of lien even to secure pay- pledge his principal's goods, except to the extent of ment of money advanced, there is no implication his own lien, with notice of the extent of his of power to sell or otherwise dispose of the subject- interest, yet where he pledged the goods on which matter of the lien, because retention of possession he had a lien tortiously, neither the factor nor his by the party entitled to the lien is an essential pawnee could retain them, even for payment of the ingredient in it. It appears, therefore, that there is amount of the original lien. The case of McCombie a real distinction between the deposit by way of v. Davis, however, shows that the factor's or broker's pledge for securing the payment of money, and a lien, although merely a right to retain possession as right to hold by way of lien to secure the same between him and his principal, might be transferred object. In Pothonier v. Dawson, Holt's N. P. C. 383, and made a security to a third person, provided he cited in argument in Legg v. Evans, Gibbs, C. J. professed to assign it only as a security of the like said: "Undoubtedly as a general proposition the amount to that due to himself. Still the character right of lien gives no right to sell goods, but when of the transaction is that of lien, and not of deposit goods are deposited by way of security to indemnify by way of pledge; and although the goods were a party against a loan of money, it is more than a intrusted to the broker for sale, and up to the time pledge; the lender's rights are more than such as of sale remained in his hands, upon a personal right accrue under an ordinary loan in the way of trade." to detain them for advances, yet he could not pledge It appears to me that considerable confusion them, and if he did the act was an essential violahas been introduced into this subject by the tion of the relation between him and his principal, somewhat indiscriminate use of the words and entitled the latter at once to the recovery of "special property," as alike applicable to the right of the value of his goods in trover; "but the relation personal retention in the case of a lien, and the of principal and factor, where money has been actual interest in the goods created by a contract advanced on goods consigned for sale, is not that