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§ 427. Upon the death of the pledgee his right to hold the pledge passes to his personal representative, who may hold and enforce the pledge in the same manner, and to the same extent, as the creditor himself might if he were living.'
§ 428. In several states it is made a criminal offense to sell or repledge collateral securities, without the consent of the pledgor. Thus, in Massachusetts it is enacted that whoever, holding any collateral security deposited with him for the payment of a debt which may be due to him, sells, pledges, lends, or in any way disposes of the same before such debt becomes due and payable, without the authority of the party depositing the same, shall be punished by fine not exceeding five hundred dollars, or imprisonment in the state prison or jail not exceeding two years.' Whoever, with intent to defraud, buys, receives, or aids in the concealment of personal property, knowing the same to be hired, leased or held as collateral security, shall be punished by fine not exceeding one hundred dollars, or imprisonment in the jail not exceeding one year.
In Pennsylvania' it is provided that it shall not be lawful for any person or persons, bank, savings fund, building association, or any corporation, to repledge or rehypothecate any stocks, bonds, or other securities, received by any of them for money lent and borrowed, during the continuance of the contract of hypothecation or pledging of such securities; and such repledging or rehypothecation, without the consent of the party pledging the same, is hereby declared a misdemeanor, triable in the courts of quarter sessions, and on conviction thereof, any person or persons, or the officers of any corporation, violating the provisions of this act, shall be sentenced to a fine
1 Henry v. Eddy, 34 Ill. 508.
2 Pub. Stats. 1882, c. 203, §§ 72, 73. 3 The offense of disposing of collateral security before the debt is due, is not indictable as embezzlement; but only under this statute. Commonwealth v. Butterick, 100 Mass. 1. But one fraudulently disposing of collat
eral security taken to indemnify him
not less than five hundred nor more than five thousand dollars, and undergo imprisonment for a period not exceeding five years, or both, or either, at the discretion of the court before which such person shall be prosecuted.
In 1881' this statute was modified by a proviso that it should not be construed to prevent brokers from pledging or hypothecating stock or other securities which they have purchased, in whole or in part, with their own money or credit for others, and for which they have not been wholly reimbursed by the parties for whom such stocks or other securities have been purchased.
IV. His Right of Action for a Conversion of the Pledge.
§ 429. A pledgee from whom a pledged chattel has been wrongfully taken may recover it by replevin, or may recover its value from the person who has converted it. His right of possession of the chattel enables him to maintain the former action; and his special property in it, the latter. The pledgee can recover the property or damages not only from the wrongful taker but from any one to whom such wrongful taker has delivered it. Thus, if the pledge has been stolen from the pledgee, and delivered to an express company, such company is liable for the value of the property after a demand for it by the pledgee.*
§ 430. The pledgee is entitled to the exclusive possession of the pledge, and may recover it or its value from the pledgor, if he wrongfully repossesses himself of it.
If a pledgee has consented to a sale of the property by the person in possession of it, his right of action is for the pro
1 Act of June 10, 1881; P. L. 1881, Nat. Bank v. Providence Warehouse 107. Co., 17 R. I. 112, 118, 20 Atl. Rep. 203.
2 Noles v. Marable, 50 Ala. 366; Woodruff v. Halsey, 8 Pick. (Mass.) 333, 19 Am. Dec. 329; Brownell v. Hawkins, 4 Barb. (N. Y.) 491; Jones on Chattel Mortgages, § 447a; Fifth
8 United States Express Co. v. Meints, 72 Ill. 293.
* United States Express Co. v. Meints, 72 Ill. 293.
ceeds of such sale, and not for the property itself or its value. His remedy is by an action for money had and received, and not by trover.1
But if a pledgee deliver possession of the pledged goods to one who promises to pay his claim out of the proceeds of the goods when sold, and the latter transfers the goods to a commission merchant who advances him more than the amount subsequently realized from their sale, the pledgee can not claim any part of the proceeds from the commission merchant, because the latter did not take the goods subject to the pledgee's lien, or subject to the first taker's promise.
§ 431. A bill in equity will not lie by a pledgee against one intrusted with property for the purpose of selling it, upon his refusal to pay over the proceeds to the pledgee; for there is a complete remedy by an action at law for money had and received.❜
§ 432. The measure of damages in an action against the pledgor or one acting under his authority for a conversion of
'Taylor v. Turner, 87 Ill. 296. 2 Black v. Bogert, 65 N. Y. 601. 'Taylor v. Turner, 87 Ill. 296, 302. The court say: "If by the allegation that the property was received upon a trust, the case may be brought within the jurisdiction of a court of chancery, we do not see why it might not be the same in every case of the bailment of personal property. And we do not see why, in like manner, all that large class of cases where the action for money had and received for another's use is maintained, might not be drawn within the jurisdiction of a court of equity by making the allegation of the receipt of the money in trust to pay the same over to another.
Trusts, though in general of a peculiar and exclusive jurisdiction in equity, are sometimes cognizable at law, as in the cases above mentioned
and the one now before us; and when so cognizable and the remedy at law is adequate and complete as we regard it here, we think such remedy should be pursued, and that it should not be left with a plaintiff at his will by the selection of the forum, to deprive the defendant of the so much prized privilege of trial by jury which exists at law."
In Coleman v. Shelton, 2 McCord Ch. (S. C.) 126, 16 Am. Dec. 639, a bill in equity to enable a pledgee to enforce his lien upon property, which the pledgor had taken from him, was sustained. The prayer of the bill was that the pledgor be restrained from disposing of the property, and that it be sold for the payment of the debt secured.
But the pledgee could recover the property by replevin: and this legal
the pledge is in like manner the value of the pledge with interest from the time of conversion, unless such amount exceeds the sum due from him to the pledgee, in which case that sum is the proper measure of damages.'
§ 433. In an action by a pledgee of goods against a third party for their conversion, the measure of damages is the full value of the goods. This rule is founded on the consideration that for all beyond the debt for which the goods are pledged, the pledgee is responsible to the pledgor. Thus, if the goods held in pledge be seized and sold on execution by a creditor of the pledgor, without statutory authority, the measure of damages in a suit by the pledgee against the officer is the value of the property and not the amount of his demand secured by the pledge. In such case the officer is a trespasser, and must be regarded as a stranger and therefore liable for the full value of the goods. But on the other hand, if the officer seize the goods in a lawful manner, he is to be regarded as acting in privity with the pledgor; and in that case the pledgee would not be answerable over for the surplus above the debt due to himself, and the officer would be answerable to the pledgee for only the value of his special interest in the goods. The solution of the question whether the officer is answerable to the pledgee for the full value of the goods or only for the value of his interest as pledgee, depends upon the question whether the officer is pursuing a proper and legal course in seizing the goods. If the pledgor has an interest which is subject to execution, and the officer properly levies upon this,
remedy being adequate, there would seem to be no occasion, or right even, to go into chancery for a remedy.
Hurst v. Coley, 15 Fed. Rep. 645; Hay v. Riddle, 1 Sandf. (N. Y.) 248; Holmes v. Langston, 110 Ga. 861, 36 S. E. Rep. 251, 254; Russell v. Kearney, 27 Ga. 96; Bigelow v. Young, 30 Ga. 121; Jones v. Hicks, 52 Miss. 682.
2 Adams v. O'Connor, 100 Mass. 515, 1 Am. Rep. 137; Ullman v. Barnard, 7 Gray (Mass.) 554; Pomeroy v.
he is deemed to be acting in privity with the pledgor, and is liable to the pledgee only for the value of his special interest. On the contrary, if the pledgor has no interest that is subject to execution, or if the officer proceeds in an unlawful manner in seizing the goods, he becomes a trespasser, and is to be treated as a stranger, liable for the full value of the property.'
§ 434. For an injury done by a stranger to the thing pledged, or for a conversion of it by him, an action may be maintained either by the pledgor or by the pledgee. The former may maintain either an action of trespass or an action of trover by virtue of his general ownership of the property, and the latter may maintain either action by virtue of his special property in it and of his actual possession of it. Moreover, either party is entitled to recover of a stranger the full value of the pledge; though when the pledgee makes such recovery he will hold the surplus above the amount required for the payment of the debt secured in trust for the general owner. But a judgment recovered by either the pledgor or pledgee is a bar to a suit by the other for the same cause of action; and it would seem that a voluntary payment of damages to one would be a bar to a suit by the other.
§ 435. In an action for money had and received by a pledgee of gold coin to recover it, the damages must be limited to the amount of money with interest, and can not be increased by regarding the coin as merchandise; for this action would not lie at all if the coin be regarded as merchandise; and being for the recovery of money the coin must be treated as money.* In an action of trover it would seem that the measure of damages should be the value of the gold at the time of the conversion; yet, in a Wisconsin case it was held that the judgment was limited to the number of dollars represented by the gold
Frothingham v. Morse, 45 N. H.
'Treadwell v. Davis, 34 Cal. 601, 606, 94 Am. Dec. 770, following in part the language of Crockett, J.
2 Jones on Chattel Mortgages, § 447a. Green v. Clarke, 12 N. Y. 343; Chesley v. St. Clair, 1 N. H. 189.