contract of bailment does not prevent a bailee from taking interpleader proceedings (ƒ). This case evidently falls within the principle suggested by Lord Blackburn; but the rules depend on the special character of a bailee's contract.

Abuse of limited interest. Where a bailee has an interest of his own in the goods (as in the common cases of hiring and pledge) and under colour of that interest deals with the goods in excess of his right, questions of another kind arise. Any excess whatever by the possessor of his rights under his contract with the owner will of course be a breach of contract, and it may be a wrong.

(f) Rogers v. Lambert, 91, 1 Q. B. 318, 60 L. J. Q. B. 187, following Biddle v. Bond.

Abuse of limited interest. One who misuses bailed goods or applies them to a purpose at variance with the bailment is liable for conversion. Ripley v. Dolbier, 18 Me. 382; Forbes v. Boston & L. R. Co., 148 Mass. 154; Crocker v. Gulliver, 44 Me. 491; Erie Dispatch v. Johnson, 3 Pick. (Tenn.) 490; 11 S. W. Rep. 441; Louisville & N. R. Co. v. Lawson, 88 Ky. 496; 11 S. W. Rep. 511. But not where the property is destroyed. Harvey v. Epes, 12 Gratt. 153.

An illustration of frequent occurrence in the cases, is where a person drives a hired horse a greater distance or a different route from the one agreed on. Wheelock v. Wheelwright, 5 Mass. 104; Homer v. Thwing, 3 Pick. 492; Lucas v. Trumbull, 15 Gray, 306; Woodman v. Hubbard, 25 N. H. 67; Fish v. Ferris, 5 Duer, 49; Freeman v. Boland, 14 R. I. 39; Disbrow v. Tenbroeck, 4 E. D. Smith, 397; Hart v. Skinner, 16 Vt. 138; Perham v. Coney, 117 Mass. 102. But not if the diversion is the result of error. Spooner v. Manchester, 133 Mass. 270; 43 Am. Rep. 14. See Harvey v. Epes, 12 Gratt. 153; Johnson v. Weedman, 5 Ill. 495. A person hiring a horse to A. and return without stopping was not held guilty for conversion by stopping. Evans v. Mason, 64 N. Y. 98; 5 At. Rep. 766. An attempt to sell or mortgage a hired carriage amounts to conversion. Follett v. Edwards, 30 Ill. App. 386.

An agister of a horse was held not liable for the horse's death, in Johnson v. Weedman, 5 Ill. 495.

A general hirer of a slave who sub-hires without consent of the bailor is liable for converson. Bell v. Cummings, 3 Sneed (Tenn.), 275. So a carrier who employs a slave. Johnson v. The Arabia, 24 Mo. 86; Scruggs v. Davis, 5 Sneed (Tenn.), 261.

A factor who ships by water instead of rail, as his principal directs, is liable for conversion. Graves v. Smith, 14 Wis. 5.

But it will not be the wrong of conversion unless the possessor's dealing is "wholly inconsistent with the contract under which he had the limited interest," as if a hirer for example destroys or sells the goods (g). That is a conversion, for it is deemed to be a repudiation of the contract, so that the owner who has parted with possession for a limited purpose is by the wrongful act itself restored to the immediate right of possession, and becomes the effectual "true owner" capable of suing for the goods or their value. But a merely irregular exercise of power, as a subpledge (h) or a premature sale (i), is not a conversion; it is at most a wrong done to the reversionary interest of an owner out of possession, and that owner must show that he is really damnified (j).

The technical distinction between an action of detinue or trover and a special action on the case here corresponds to the substantial and permanent difference between a wrongful act for which the defendant's rightful possession is merely the opportunity, and a more or less plausible abuse of the right itself.

The case of a common law lien, which gives no power of disposal at all, is different; there the holder's only right is to keep possession until his claim is satisfied. If he parts with possession, his right is gone, and his attempted disposal merely wrongful, and therefore he is liable for the full value (k). But a seller remaining in possession who re-sells before the buyer is in default is liable to the buyer

(g) Blackburn J., L. R. 1 Q. B. 614; Cooper v. Willomatt, 1 C. B. 672, 14 L. J. C. P. 219. It can be a trespass only if the bailment is at will.

(h) Donald v. Suckling (1866), L. R. 1 Q. R. 585, 35 L. J. Q. B. 232.

(i) Halliday v. Holgate (1868), Ex. Ch. L. B. 3 Ex. 299; see at p. 302, 37 L. J. Ex. 174.

(j) In Johnson v. Stear (1863), 15 C. B. N. S. 330, 33 L. J. C. P. 130, nominal damages were given; but it is doubtful whether, on the reasoning adopted by

the majority of the Court, there should not have been judgment for the defendant: see 2 Wms. Saund. 114; Blackburn J., L. R. 1 Q. B. 617; Bramwell L. J., 3 Q. B. D. 490.

(k) Mulliner v. Florence (1878), 3 Q. B. Div. 484, 47 L. J. Q. B. 700, where an innkeeper sold a guest's goods. A statutory power of sale was given to innkeepers very shortly after this decision (41 & 42 Vict. c. 38), but the principle may still be applicable in other cases.

only for the damage really sustained, that is, the amount (if any) by which the market price of the goods, at the time when the seller ought to have delivered them, exceeds the contract price (7). The seller cannot sue the buyer for the price of the goods, and if the buyer could recover the full value from the seller he would get it without any consideration: the real substance of the cause of action is the breach of contract, which is to be compensated according to the actual damage (m). A mortgagor having the possession and use of goods under covenants entitling him thereto for a certain time, determinable by default after notice, is virtually a bailee for a term, and, like bailees in general, may be guilty of conversion by an absolute disposal of the goods; and so may assignees claiming through him with no better title than his own; the point being, as in the other cases, that the act is entirely inconsistent with the terms of the bailment (n). One may be allowed to doubt, with Lord Blackburn, whether these fine distinc

(1) Chinery v. Viall (1860), 5 H. & N. 288, 29 L. J. Ex. 180. This rule cannot be applied in favour of a sub-vendor sued for conversion by the ultimate purchaser, there being no privity between them: Johnson v. Lancs. and Yorkshire R. Co. (1878), 3 C. P. D. 499.

(m) "A man cannot merely by changing his form of action vary the amount of damage so as to recover more than the amount to which he is in law really entitled according to the true facts of the case and the real nature of the transaction:" per Cur. 29 L. J. Ex. 184.

Co

(n) Fenn v. Bittleston (1851), 7 Ex. 152, 21 L. J. Ex. 41; where see the distinctions as to trespass and larceny carefully noted in the judgment delivered by Parke B. Conversion as between owners- General and Special Property-The normal rights of co-owners as to possession and use may be modified by contract. One of them may thus have the exclusive right to possess the chattel, and the other may have temporary possession or custody, as his bailee or servant, without the power of

conferring any possessory right on a third person even as to his own share. In Nyberg v. Handelaar, '92, 2 Q. B. 202, A. had sold a half share of a valuable chattel to B. on the terms that A. should retain possession until the chattel (a gold enamel box) could be sold for their common benefit. Afterwards A. let B. have the box to take it to an auction room. Then B., thus having manual possession of the box, delivered it to Z. by way of pledge for a debt of his own. The Court of Appeal held that Z. had no defence to an action by A. to recover the value of his half share. The judgments proceed on the assumption that B., while remaining owner in common as to half the property, held the possession only as bailee for a special purpose, and his wrongful dealing with it determined the bailment, and revested A.'s right to immediate possession: see Fenn v. Bittleston, 7 Ex. 152, and similar cases cited in text. Qu. whether, on the facts, B. were even a bailee, or were not rather in the position of a servant having bare custody.

tions have done much good, and to wish it had been originally determined that even in such cases the owner should bring a special action on the case and recover the damage which he actually sustained" (o). Certainly the law would have been simpler, perhaps it would have been juster. It may not be beyond the power of the House of Lords or the Court of Appeal to simplify it even now; but our business is to take account of the authorities as they stand. And, as they stand, we have to distinguish between

(i.) Ordinary cases of conversion where the full value. can be recovered:

(ii.) Cases where there is a conversion but only the plaintiff's actual damage can be recovered: (iii.) Cases where there is a conversion but only nominal damages can be recovered; but such cases are anomalous, and depend on the substantial cause of action being the breach of a contract between the parties; it seems doubtful whether they ought ever to have been admitted:

(iv.) Cases where there is not a conversion, but an action (formerly a special or innominate action on the case) lies to recover the actual damage.

Conversion by estoppel. A man may be liable by estoppel as for the conversion of goods which he has represented to be in his possession or control, although in fact they were not so at any time when the plaintiff was entitled to possession (p). And he may be liable for conversion by refusal to deliver, when he has had possession and has wrongfully delivered the goods to a person having no title. He cannot deliver to the person entitled when the demand is made, but, having disabled himself by his own wrong, he

(0) L. R. 1 Q. B. at p. 614.

(p) Seton v. Lafone (1887), 19 Q. B. Div. 68, 56 L. J. Q B. 415.

is in the same position as if he still had the goods and refused to deliver (q).

VI.- Injuries between Tenants in Common.

As between

Trespasses between tenants in common. tenants in common of either land or chattels there cannot be trespass unless the act amounts to an actual ouster, i. e. dispossession. Short of that "trespass will not lie by the one against the other so far as the land is concerned” (r).

(q) Bristol and W. of England Bankv. Midland R. Co., '91, 2 Q. B. 653, 65 L. T. 234, C. A.

(r) Lord Hatherley, Jacobs v. Seward (1872), L. R. 5 H. L. 464, 472, 41 L. J. C. P. 221.

Trespasses between tenants in common. Trespass lies for an actual ouster of one co-tenant by another. Erwin v. Olmstead, 7 Cow. 229; Filbert v. Hoff, 42 Pa. St. 97; McClure v. Thorpe, 68 Mich. 33; 35 N. W. Rep. 829; Byam v. Bickford, 140 Mass. 31; 2 N. E. Rep. 687.

As to a tenant in common, acts which if committed by another would be ouster are not so unless capable of no other construction. Parker v. Locks & Canal, 3 Metc. 91.

There must be an actual hostile adverse possession coupled with notice thereof to the co-tenant. Chandler v. Ricker, 49 Vt. 128; Ball v. Palmers, 81 Ill. 370; Culver v. Rhodes, 87 N. Y. 348; Noble v. McFarland, 52 Ill. 226.

Thus, the purchase of an outstanding title is not ouster, for the purchase inures to the benefit of the common title, by implication of law. Jones v. Stanton, 11 Mo. 433; Van Horne v. Stunda, 5 Johns. Ch. 338; Weaver v. Wible, 25 Pa. St. 270; Tisdale v. Tisdale, 2 Sneed (Tenn.), 596; Coleman v. Coleman, 3 Dana, 228; Bracken v. Cooper, 80 Ill. 221; Page v. Branch, 97 N. C. 97; 1 S. E. Rep. 625. Contra, Peck v. Lockridge, 97 Mo. 549; 11 S. W. Rep. 246; Clark v. Cregs, 47 Barb. 599. But a conveyance to a stranger adversely to the estate is ouster. Odom v. Weathersbee, 26 S. C. 244; 1 S. E. Rep. 890; Cook v. Clinton, 64 Mich. 309; 31 N. W. Rep. 317.

A mere formal demand of possession by one co-tenant met by a refusal is not ouster. Carpenter v. Menderhall, 28 Cal. 484. Nor is a mere denial of the co-tenant's title. Campan v. Campan, 45 Mich. 367.

But aliter where the denial is incorporated in an answer to a suit. Greer v. Tripp, 56 Cal. 209. A denial of title coupled with possession professed to be adverse is evidence tending to show ouster. Carpenter v. Gardiner, 29 Cal. 160; Jefcoat v. Knott, 13 Rich. 50; Marcy v. Diverson, 8 Metc. 544; Mayes v. Manning, 73 Tex. 43; 11 S. W. Rep. 136;