having relied on the expectation thus held out, and lost the opportunity of purchasing at a reduced price, it is manifestly just that the plaintiff should recover according to the value of the thing pledged when the defendant finally failed in his promises to restore it.

Judgment affirmed.

STOCK CERTIFICATES MAY BE PLEDGED: See Nourse v. Prime, 8 Am. Dec. 606; S. C., 11 Id. 403; Dykers v. Allen, 42 Id. 87, and note; Gilpin v. Howell, 45 Id. 720; Whitlock v. Heard, 48 Id. 73. See also the note to Lucketts v. Townsend, 49 Id. 734. The principal case is cited as an authority for the same doctrine in Newton v. Fay, 10 Allen, 507; Goldstein v. Hort, 30 Cal. 376; Campbell v. Parker, 9 Bosw. 329; In re Wiley, 4 Biss. 172. A transfer of shares of stock in writing, as collateral security for a debt, is a pledge; unless they are expressly made assignable by delivery, they can be pledged in no other way: Brewster v. Hartley, 37 Cal. 25. And though the legal title passes to the pledgee of stock delivered as collateral security, it is nevertheless a pledge, and not a mortgage: Hasbrouck v. Vandervoort, 4 Sandf. 78. The pledgor has only a legal right of restoration of the stock in case of payment: Brewster v. Hartley, 37 Cal. 26; all citing the principal case.

TRANSFER OF STOCK TO A BONA FIDE PURCHASER ON THE BOOKS of the corporation, in accordance with its by-laws, passes the legal title, though the certificates are not surrendered: New York etc. R. R. Co. v. Schuyler, 38 Barb. 542, 543; S. C., 34 N. Y. 80, citing the principal case as to the necessity of a transfer on the books. See on that point Commercial Bank v. Kortright, 24 Am. Dec. 317; State v. Harris, 36 Id. 460; Duke v. Cahawba Nav. Co., 44 Id. 472, and notes.

WHAT MAY BE PLEDGED IN GENERAL: See the note to Lucketts v. Townsend, 49 Am. Dec. 733. That choses in action and other property not capable of manual delivery may be the subject of a pledge, is a point to which the principal case is cited in Haskins v. Kelly, 1 Abb. Pr., N. S., 73; Wright v. Ross, 36 Cal. 442. Thus a note and mortgage may be pledged: Wright v. Ross, supra; Warren v. Emerson, 1 Curt. 241.

DISTINCTION BETWEEN PLEDGE AND MORTGAGE: See the note to Lucketts v. Townsend, 49 Am. Dec. 731. The principal case is cited on that point in Wilson v. Brannan, 27 Cal. 271; although, for the purposes of that case, it was held to be immaterial whether the transaction was to be regarded as a pledge or as a mortgage. A chattel mortgage, unlike a pledge, is a present transfer of the title subject to be defeated by payment, but which becomes absolute in case of non-payment at maturity: Parshall v. Eggert, 54 N. Y. 23. But an assignment of a chose in action, as collateral security, is not necessarily a mortgage because the title passes, for, as stated above in considering the subject of pledges of stock, it may be that an assignment is necessary to give full control of the security as a pledge: Gay v. Moss, 34 Cal. 125, 132. An instrument transferring certificates of state indebtedness as collateral security for a debt, with authority to sell in case of non-payment within thirty days after maturity, is a pledge, and not a mortgage: Leuis v. Varnum, 12 Abb. Pr. 308; all citing the principal case. But a transfer of a note and mortgage to indemnify a party against a liability, he agreeing to retransfer the same upon being otherwise indemnified, was held, in Warren v. Emerson, 1 Curt. 241, not to be a legal mortgage or pledge, but a conveyance In trust, distinguishing Wilson v. Little. An absolute transfer of an interest

in a vessel may be shown to have been intended merely as a security by way of pledge: West v. Crary, 47 N. Y. 425, also citing the principal case. That a deposit of stock as collateral security for a loan is a pledge and not a mortgage, is a point to which the principal case is cited per Brady, J., dissenting, in Woodworth v. Morris, 56 Barb. 104.

DELIVERY IS ESSENTIAL TO A PLEDGE: Lucketts v. Townsend, 49 Am. Dec. 731, note; Goldstein v. Hort, 30 Cal. 376; Campbell v. Parker, 9 Bosw. 329; Haskins v. Kelly, 1 Robt. (N. Y.) 172; Milliman v. Neher, 20 Barb. 40; Muller v. Pondir, 6 Lans. 480, all citing Wilson v. Little. But a manual delivery is not essential where the thing pledged is not capable of it, but a written transfer is sufficient: Haskins v. Kelly, 1 Robt. (N. Y.) 172; as in the case of goods at sea: Muller v. Pondir, 6 Lans. 480. Shares of stock may be pledged by delivery of the certificates, if that is sufficient to give the pledgee control: Goldstein v. Hort, 30 Cal. 376.

PLEDGEE'S POWER TO SELL PLEDGE: See Dykers v. Allen, 42 Am. Dec. 87; Stearns v. Marsh, 47 Id. 248; Whitlock v. Heard, 48 Id. 73, and notes. See also the note to Lucketts v. Townsend, 49 Id. 736. A pledgee may sell the pledge in case of default in payment, whether an express authority to sell is given by the pledgor or not, and may either resort to judicial process to cut off the right to redeem, or may sell without it after due notice to redeem, and of the time and place of sale: Andrews v. Clerke, 3 Bosw. 590; Markham v. Jaudon, 41 N. Y. 241; Porter v. Parks, 49 Id. 569; Wright v. Ross, 36 Cal. 429. But a demand of payment and notice of the time and place of sale are essential, unless the contract provides otherwise or demand and notice are waived: Lewis v. Graham, 4 Abb. Pr. 110, 111; McNeil v. Tenth National Bank, 55 Barb. 64; Huggans v. Fryer, 1 Lans. 279; Taylor v. Ketchum, Robt. (N. Y.) 518; S. C., 35 How. Pr. 299; Durant v. Einstein, Id. 231; Wheeler v. Newbould, 5 Duer, 34; Atlantic etc. Ins. Co. v. Boies, 6 Id. 587; Ketchum v. Stevens, Id. 485; Milliken v. Dehon, 10 Bosw. 328; S. C., in court of appeals, 27 N. Y. 375; Markham v. Jaudon, 41 N. Y. 241; Farwell v. Importers' etc. Bank, 90 Id. 490; and a waiver of demand is not a waiver of notice of sale: Durant v. Einstein, 35 How. Pr. 231; Taylor v. Ketchum, Id. 299; S. C., 5 Robt. (N. Y.) 518. The fact that the authority to sell is express does not dispense with demand and notice: Andrews v. Clerke, 3 Bosw. 590. But it is held, in Hyatt v. Argenti, 3 Cal. 161, 163, commenting upon and distinguishing the principal case, that where express authority is given to the pledgee to sell at his option, the doctrine above laid down does not apply. A sale which is unauthorized is a conversion: Scott v. Rogers, 4 Abb. App. Dec. 164, note; Read v. Lambert, 10 Abb. Pr., N. S., 436; and the pledgor may sue therefor without a tender of payment: Read v. Lambert, supra. In all the foregoing cases the authority of Wilson v. Little is recognized. The case is cited also in Farwell v. Importers' etc. Bank, 90 N. Y. 489, and Brewster v. Hartley, 37 Cal. 26, to the point that the pledgor upon payment before sale is entitled to a restoration of the pledge.

MEASURE OF DAMAGES FOR WRONGFUL SALE BY PLEDGEE.-Where a plaintiff commences and prosecutes with reasonable diligence an action for the conversion of stock by a bailee, it is held, in Romaine v. Van Allen, 26 N. Y. 310, citing the principal case, that he is entitled to the highest market price from the time of conversion to the trial. But in Atkins v. Gamble, 42 Cal. 102, it was decided, in an action for the conversion of shares of stock, that if the wrong-doer was always ready and willing to transfer to the plaintiff an equal number of similar shares in the same corporation, the plaintiff was entitled to nominal damages only, and the principal case was referred to

as going upon the ground, that there was a material difference between the stock offered to be returned and that which was pledged, the latter being “consolidated” and the former "converted" stock. In Smith v. Dunlap, 12 Ill. 192, the principal case is cited to the general proposition, that in an action for breach of a contract to deliver property, where the price was paid in advance, or of a contract to replace stocks, the plaintiff is entitled to the highest market value between the period of delivery and the trial. See, as to the measure of damages for an unauthorized sale by a factor, Blot v. Boiceau, post, 345, and note.

VANDERBILT v. RICHMOND TURNPIKE COMPANY.

[2 NEW YORK (2 COMSTOCK), 479.]

CORPORATION IS NOT LIABLE FOR A TORTIOUS ACT committed willfully and

maliciously by its servant, without authority from the directors or other governing body, even though it was done under orders from the president and general manager.

THE action was for the running down of the plaintiff's steamboat, the Wave, by the defendants' steamboat, the Samson. The only question was, whether, under the circumstances detailed in the opinion (see also the proof made on the former trial of the cause, reported as Richmond Turnp. Co. v. Vanderbilt, 1 Hill (N. Y.), 480), the corporation owning the colliding vessel was liable for the willful and tortious act of her master.

George Wood, for the appellant, the owner of the vessel injured.

John Sherwood, attorney, and S. Sherwood, of counsel, for the respondents, the corporation owning the colliding vessel.

By Court, CADY, J. The injury of which the plaintiff complained was occasioned by the willful act of Captain Braisted, who had charge of the defendants' boat, the Samson; and for such act, the supreme court held the defendants were not liable: Richmond Turnp. Co. v. Vanderbilt, 1 Hill (N. Y.), 480. It was proved on the last trial, that Mr. Oroondates Mauran was president of the said company, and one of the principal stockholders, and had the control and management of the business of the company as general agent. It was also proved, that before the injury complained of was done, Captain Braisted told Mr. Mauran, that the plaintiff's boat, the Wave, had crowded him out of his course a few days before, and said she was a much smarter boat than the Samson; that Mr. Mauran then said to Braisted, "If she ever does that again, damn her, run into her, sink her, Braisted." It was also

proved that immediately after the injury, Mr. Mauran was asked, "whether he did not think it was unpardonable to allow his boat to run into and try to sink the Wave when so many people were on board of her?" he said, "Damn him, I wish he had sunk him." It is not easy to discover what was meant by these words, but if it be assumed that Mr. Mauran was the general agent of the company, and intended by these words to approve of the acts of the captain, the question then is, Is the company liable for a malicious and willful trespass committed by the captain of its boat, and approved of by its general agent? If the company be not so responsible, then the plaintiff ought to have been nonsuited, and the judge erred in his charge to the jury. He charged the jury to inquire "whether Mr. Mauran authorized or gave his previous sanction to Captain Braisted's running into the plaintiff's boat, or assented to, or ratified it, when it was done. If he did, and at that time had the general charge and management of the defendants' affairs, they are liable." I can find no authority making a corporation liable for the willful trespass of its general or special agent, or other than 1 R. S., 2d ed., 683, sec. 10, and that is only understood as making the owners of a steamboat liable for the penalty imposed by the ninth section: Richmond Turnp. Co. v. Vanderbilt, 1 Hill (N. Y.), 481. Neither an individual nor a corporation, by appointing a general agent, authorizes him to commit a willful trespass, or to authorize or approve of such a trespass, any more than such authority is conferred by the appointment of a special agent. Suppose a farmer directs his servant to take his wagon and horses and take a load of wheat to mill, and on the way to the mill the servant willfully drives the team and wagon over a man and breaks his leg, the farmer is not liable. That was decided in Wright v. Wilcox, 19 Wend. 343 [32 Am. Dec. 507]. Suppose the farmer has a large stock of cattle and horses, and carriages, and farming utensils of all sorts on his farm, and he appoints a general agent to manage and transact all business on and in relation to the farm and all things thereon for ten years, and the general agent was, in terms, authorized to employ such and as many servants as he pleased for the purpose of doing the work on and in relation to the farm; and suppose this general agent should order one of the hired servants to take a load of wheat to mill on a wagon, and drive over and kill John Doe's cow, if he found her in the road, and the servant should obey the order, and kill the cow, would the owner of the farm be lia

ble for this willful trespass? A general agent, when he commits or orders a willful trespass to be committed, acts without the scope of his authority, as much as a special agent would in committing or ordering the same trespass to be committed. The jury were charged that if the general agent assented to or ratified it (the trespass) when it was done, then the defendant was liable. Suppose that after the captain of the boat had committed the willful trespass, the general agent had said, I approve of what the captain has done, and wish he had sunk the steamboat Wave. This would have been a more distinct approval and assent than any which was proved, and yet would that have made the company liable? When the captain committed the willful trespass, the company was not liable, and could it be made liable after the trespass was committed by the declaration of its general agent that he approved of what the captain had done, and wished that the captain had sunk the boat? The general agent was appointed for no such purpose; he was appointed to manage all the business of the company in the most advantageous manner for the stockholders, and not to ruin them by his passionate and foolish declarations.

As to public officers, the approbation by a superior, of a trespass committed by his inferior officer, renders the superior a trespasser: Van Brunt v. Schenck, 13 Johns. 414. In that case the defendant was surveyor of the port of New York, and was sued for seizing and taking the schooner called the Nancy. W. Van Beuren, a witness for the defendant, "testified that he seized the Nancy for a breach of the embargo laws, and immediately reported the seizure to the defendant, who approved of what he had done." This, the court said, supreme 66 was a complete ratification and adoption of the act of seizure, and put the defendant in the same situation as if he had himself made the seizure." The defendant had an interest in the seizure. Had the schooner been condemned, he would have been entitled to a part of the forfeiture. The defendant, while the schooner was under seizure, had used her to transport his goods from Hell Gate to New York.

In the case of Bishop v. Viscountess Montague, Cro. Eliz. 824, the defendant's bailiff took five oxen as for heriots due to the defendant, when there was not any due, without any command from the defendant; but she agreed thereto, and converted the oxen to her own use. Two of the judges held that she was liable in trespass, but not in trover, and the other two judges held that she was liable in trespass or trover. In that case a