1816. TH POTHONIER and HODGSON V. DAWSON. 1. In an ac tion of trover fendant, for not delivering against the de some wine de posited with her by way of security for an sufficient eviconversion to shew, that her dence of a HIS was an action of trover to recover some wine which had been deposited in the defendant's cellar. The circumstances were these: Pothonier, being in want of money, applied to the defendant to advance him some, and proposed to deposit 200 dozen of wine in her hands. This wine advance of was to remain as a security for the money ad- that it was not vanced. It was agreed that the plaintiff should be at no expence for warehouse-room, and should have the wine re-delivered upon satisfying the loan. The wine having been deposited, and bills accepted by Pothonier for the money advanced, the plaintiff, a few months afterwards, took in the co-plaintiff, Hodgson, as his partner. The wine remained in the defendant's cellars; and it appeared that the plaintiffs, in two or three instances, had sent for a portion of this wine to the de son, who acted as her general agent, refused to give it up; and that it was necessary to prove, that such agent special direc make the defendant liable. acted under a tion,in order to fendant, and that some dozens had been delivered? 2. If goods are deposited as a security money, such tutes some than the right out to the joint order of Pothonier and Hodgson. for a loan of The bills which Pothonier gave were not paid, and deposit consti he became insolvent. Afterwards Hodgson, in thing more their joint names, applied to the defendant for the of lien; and it wine, which she refused to deliver, and sold to is to be inreimburse herself. In consequence of this and sale, the plaintiffs brought the present action. In order to prove a conversion, a witness was refusal ferred that the contract be parties is, that tweeen the if the borrower do not repay the advance, the lender shall be at liberty to reimburse himself by the sale of the deposit. 1816. POTHONIER and Another v. DAWSON. called, who stated, that he applied to the defendant for the wine, and that she referred him to her son, who had the management of the business: he refused to deliver it up, or to pay over the proceeds. Vaughan, serjeant, for the defendant, contended, that this was no evidence of a conversion by the defendant. Best, serjeant, contrà.-The acts of the defendant's agent and servant are her acts: she entrusted the management of her business to him; and she refers to him upon an application. What he says and does, under such circumstances, must bind her. But GIBBS, C. J.-It is not necessary to discuss how far the son, who is employed as a general agent and servant, may bind the mother by contracts which he makes with third parties. his refusal to deliver the wine in question does not affect her with a conversion. It might be her conversion; but she cannot be made a wrong doer by this evidence. The plaintiffs, however, may shew that, in the particular fact of the refusal, he acted under her special direction. The conversion was afterwards proved by other evidence. Vaughan, serjeant, for the defendant, con tended, that the defendant had a right to detain 1816. the wine. It was deposited with her as a security POTHONIER for the separate debt of Pothonier at a time when and Another Hodgson was no partner. She had a lien upon it, if not a property in the wine, upon the non-payment of the bills. Pothonier, by taking in a partner, could not communicate any right to him which he himself had not. Best, serjeant, contrà.-Admitting the defendant had a right of lien, she has clearly been guilty of a conversion by selling the wine. The right of lien is collateral to the right of property, and does not entitle the party claiming it to sell. GIBBS, C. J.-The defendant is entitled to a verdict. Undoubtedly, as a general proposition, a right of lien gives no right to sell the goods. But when goods are deposited, by way of security, to indemnify a party against a loan of money, it is more than a pledge. The lender's rights are more extensive than such as accrue under an ordinary lien in the way of trade. These goods were deposited to secure a loan. It may be inferred, therefore, that the contract was this:"If I (the borrower) repay the money, you must re-deliver the goods; but if I fail to repay it, you may use the security I have left to repay yourself." I think, therefore, the defendant had a right to sell. There is no fraud practised upon Hodgson; and the delivery of a few dozen of wine to the joint order of Pothonier and Hodgson cannot be strained into a renunciation of the defendant's v. DAWSON. |