that this would enable him to enjoy the property by pretending to hold it for another. Justice Strong in the "Idaho" case remarks, "a bailee cannot avail himself of the title of a third person (though the person be the true owner) for the purpose of keeping the property for himself, not in any case where he has not yielded to the paramount title." 93 U. S. 575.

The evidence in this case shows that the defendant, at the time of the replevin, was in actual possession of the mules which he borrowed, and that his plea of being the agent or bailee of a paramount owner rests upon his voluntary act alone, without suit, threat or demand of such owner or claimant.

Although the cases in which the doctrine of jus tertii is defined and enforced are somewhat conflicting, I am not aware of any well-considered expression which goes to the length of justifying the defense, as it appears in the evidence and instructions of this case.

Accordingly I am of the opinion that the court did not err in refusing it, or in giving the one asked by plaintiff. The judgment should be affirmed, and it is so ordered.

Judgment affirmed.

All concur.

A BAILEE HAS THE RIGHT TO RECOVER DAMAGES FROM ONE WHO INJURES THE PROPERTY WHILE

IN THE BAILEE'S POSSESSION

LITTLE V. FOSSETT

34 Me. 545 (1852)

Trespass for damages to a hired wagon and harness, injured by negligence of defendant in driving against the wagon on the highway. The court below refused an instruction that one having a mere temporary possession could not sue for a permanent injury. Exceptions to such refusal. Verdict for plaintiff.

By Court, API LETON, J. The law seems to be well settled that the bailee of personal property may recover compensation for any conversion of or any injury to the article bailed while in his possession. The longer or shorter period of such bailment, the greater or lesser amount of compensation-and whether such amount is a matter of special contract or is a legal implication from the beneficial enjoyment of the loan does not seem to affect the question. "The borrower has no special property in the thing loaned, though his possession is sufficient for him. to protect it by an action of trespass against a wrongdoer:" 2 Kent's

Com. 574. By the common law, in virtue of the bailment, the hirer acquires a special property in the thing during the continuance of the contract and for the purposes expressed or implied by it. Hence he may maintain an action for any tortious dispossession of it or any injury to it during the existence of his right: Story on Bail., sec. 394. In Croft v. Alison, 4 Barn. & Ald. 590, the court held that the plaintiffs, who had hired the chariot injured, for the day, and had appointed the coachman and furnished the horses, might be deemed the owners and proprietors of the chariot, and as such might recover of the defendant for the injury it had sustained from his negligent driving. In Nicolls v. Bastard, 2 Cromp. M. & R. 659, it was decided that, in case of a simple bailment of a chattel without reward, its value might be recovered in trover either by the bailor or bailee, if taken out of the bailee's possession.

The bailee is entitled to damages commensurate with the value of the property taken or the injury it may have sustained, except in a suit against the general owner, in which case his damages are limited to his special interest. "If," Say the court, in White v. Webb, 15 Conn. 302, "the suit is brought by a bailee or special propertyman against the general owner, then the plaintiff can recover the value of his special property; but if the writ is against a stranger, then he recovers the value of the property and interest according to the general rule, and holds the balance beyond his own interest, in trust for the general owner." This view of the law seems fully confirmed by the uniform current of authority: Lyle v. Barker, 5 Binn. 457; Ingersoll v. Van Bokkelin, 7 Cow. 670; Chesley v. St. Clair, 1 N. J. 189; 2 Kent's Com. 585.

The instructions given were correct. The exceptions are overruled, and judgment is to be rendered on the verdict.

A PLEDGEE HAS NO RIGHT TO SELL THE PROPERTY PLEDGED TO SECURE A DEBT WITHOUT GIVING NOTICE OF THE INTENDED SALE TO THE PLEDGOR

STEARNS V. MARSH

4 Denio N. Y. 227 (1847)

Assumpsit on a note, secured by ten cases of boots deposited with plaintiff. Verdict, under instructions from the court, for the balance due on the note.

By Court, JEWETT, J. The contract between these parties was strictly a pledge of the boots and shoes. At common law, a pledge is defined to be a bailment of personal property, as a security for some

debt or engagement; 2 Kent's Com. 577, 5th ed.; Story on Bail., sec. 286. The plaintiff's debt, thus secured, became payable on the eighth day of November, 1837. On the fifteenth of that month, the plaintiffs caused the pledge to be sold at a public sale by an auctioneer in Boston, pursuant to a public notice published in certain newspapers in that city from the second to the fifteenth of November inclusive; but no notice of sale, or to redeem, was at any time given to the defendants. The net proceeds of the sale was one hundred and sixty-six dollars and ninety-seven cents, which the plaintiffs applied on their debt without the assent of the defendants.

The first question made on the argument is, whether the sale thus made was authorized and bound the defendants. On the part of the plaintiffs it was insisted, that the pledge having been made as a security for their debt, which was payable at a future day, the plaintiffs had a right, after a default in payment, to sell the pledge, fairly in the usual course of business, without calling on the defendants to redeem, or giving them notice of the intended sale: and that such sale concluded the defendants. It is said that the law makes a distinction between the case of a pledge for a debt payable immediately, and one where the debt does not become payable until a future day; and that in the latter case the creditor is not bound to call for a redemption or to give notice of sale, though in the former it is conceded that there must be such demand and that notice must be given. Non-payment of the debt at the stipulated time did not work a forfeiture of the pledge, either by the civil or at the common law. It simply clothed the pledgee with authority to sell the pledge and reimburse himself for his debt, interest, and expenses; and the residue of the proceeds of the sale then belonged to the pledgor. The old rule, existing in the time of Glanville, required a judicial sentence to warrant a sale, unless there was a special agreement to the contrary. But as the law now is, the pledgee may file a bill in chancery for a foreclosure and proceed to a judicial sale; or he may sell without judicial process, upon giving reasonable notice to the pledgor to redeem, and of the intended sale.

I find no authority countenancing the distinction contended for; but on the contrary, I understand the doctrine to be well settled, that whether the debt be due presently or upon time, the rights of the parties to the pledge are such as have been stated; Cortelyou v. Lansing, 2 Cai. Cas. 204; 2 Kent's Com., 5th ed., 581, 582; 4 Id. 138; Tucker v. Wilson, 1 P. Wms. 261; Lockwood v. Ewer, 2 Atk. 303; Johnson v. Vernon, 1 Bail. 527; Perry v. Craig, 3 Mo. 516; Parker v. Brancker, 22 Pick. 40; De Lisle v. Priestman, 1 Browne (Pa.), 176; Story's Com. on Eq., sec. 1008; Story on Bailm., sec. 309, 310, 346; Hart v. Ten

5.

Eyck, 2 Johns. Ch. 100; Patchin v. Pierce, 12 Wend. 61; Garlick v. James, 12 Johns. 146 (7 Am. Dec. 294). Nor do I see any reason for such a distinction. In either case the right to redeem equally exists until a sale: the pledgor is equally interested, to see to it that the pledge is sold for a fair price. The time when the sale may take place is as uncertain in the one case as in the other: both depend upon the will of the pledgee, after the lapse of the term of credit in the one case, and after a reasonable time in the other; unless indeed the pledgor resorts to a court of equity to quicken a sale. Personal notice to the pledgor to redeem, and of the intended sale, must be given as well in the one case as in the other, in order to authorize a sale by the act of the party. And if the pledgor can not be found and notice can not be given to him, judicial proceedings to authorize a sale must be resorted to: 2 Story's Com. on Eq., sec. 1008. Before giving such notice, the pledgee has no right to sell the pledge; and if he do, the pledgor may recover the value of it from him, without tendering the debt; because by the wrongful sale the pledgee has incapacitated himself to perform his part of the contract, that is to return the pledge, and it would therefore be nugatory to make the tender: Cortelyou v. Lansing, supra: Story on Bail. (2d. ed.) 349; McLean v. Walker, 10 Johns. 472.

The evidence in this case shows that the plaintiffs, in November, 1837, long prior to the commencement of this suit, tortiously sold the pledge, and thereby put it entirely beyond their power to return it, upon payment of the debt. Where a pledge is made by a debtor to his creditor to secure his debt, for a certain term, the law requires that the latter shall safely keep it without using it, so as to cause any detriment thereto; and if any detriment happens to it within the term appointed, it may be set off against the debt, according to the damages sustained. And if the pledge is made without mention of any particular term, the creditor may demand his debt at any time. When the debt is paid, the creditor is bound to restore the pledge in the condition he received it, or make satisfaction for it; if not, he is to lose his debt: 1 Reeve's Hist. Eng. L. 161, 162. If the pledgor, in consequence of any default of the pledgee, or of his conversion of the pledge, has by any action recovered the value of the pledge, the debt in that case remains, and is recoverable, unless in such prior action it has been deducted. By the common law the pledgee, in such an action brought for the tort, has a right to have the amount of his debt recouped in the damages: Bac. Abr., Bailment, B; Jarvis v. Rogers, 15 Mass. 389; Story on Bail. (2d ed.) secs. 315, 349.

The plaintiffs were wrong-doers in selling the pledge at the time they did, without notice to redeem or of the sale being given to the defendants; and it is shown that the value of the pledge at the time

equaled, if it did not exceed, the debt which it was made to secure. The counsel for the defendants, in effect, offered to recoup their damages arising from the plaintiffs' breach of the contract of pledge, but was not permitted to do so. It is urged by the plaintiff's counsel, that the defense was not admissible under the pleadings: but I am satisfied that it was unnecessary to plead specially, or to give notice of the matters relied on. The evidence establishes that the plaintiffs had no cause of action, and the defense is fairly covered by the plea of non assumpsit: Batterman v. Pierce, 3 Hill, 171; Barber v. Rose, 5 Id. 76; Ives v. Van Epps, 22 Wend. 155. The defendants clearly had an election of remedies against the plaintiffs for the conversion of the pledge. They could maintain trover or assumpsit, and in the latter action could recover the value under the common counts: Hill v. Perrott, 3 Taunt. 274; Butts v.. Collins, 13 Wend, 139-154. If assumpsit was maintainable by them, they may, in an action by the plaintiffs, set off the value of the boots and shoes as for such property sold. There is no valid objection on the ground that the damages are unliquidated or uncertain. The case of Butts v. Collins is decisive on that point. There must be a new trial.

New trial granted.

WHERE RAILROAD STOCK IS DEPOSITED AS COLLATERAL SECURITY FOR THE PAYMENT OF A NOTE, IT CONSTITUTES A PLEDGE, AND CAN NOT BE SOLD WITHOUT NOTICE TO THE PLEDGOR.

WILSON V. LITTLE

2 N. Y. (2 Comstock) 443 (1849)

Trover for the conversion of railroad stock. Judgment for plaintiff. By Court, RUGGLES, J. This was an action for wrongfully selling fifty shares of Erie railroad stock, which the defendants, Little & Co. had received in security for a loan of two thousand dollars made by them to Wilson, through the agency of R. L. Cutting, a broker. The contract in writing was in these words:

"$2,000.

New York, December, 20, 1845. "I promise to pay Jacob Little or order two thousand dollars, for value received, with interest at the rate of seven per cent. per annum, having deposited with them as collateral security, with authority to sell the same at the broker's board, or at public auction, or at private sale, at option, on the non-performance of this promise, without notice on fifty Erie.

"R. L. CUTTING."