Hyatt

delivered the following opinion, concurring with the opinion of Mr. Justice Heydenfeldt.

The city scrip and requisitions, alleged to have been fraudulently converted by the defendant to his own use, were transferred to him by assignments in writing, absolute on their face, for value received, and carrying with them the jus disponendi. But it is insisted, on the part of the plaintiff, that notwithstanding the absolute transfer of the property and legal title in these securities, still they were, in truth and in fact, only held by the defendant in pledge, as collateral security; and being so held, that the sale of them by defendant without demand of payment, and notice of the time and place of sale, was a conversion, and a fraud upon the plaintiff.

The rule of law as stated is doubtless correct as applied to a proper case, and the point here is, whether such a case is presented as renders the rule applicable ?

It will not be denied that collateral security may be held in as many various ways and subject to as many different conditions, as there is variety in the objects and character of contracts; thus: personal property, merchandize, or stock, may be held as collateral security,…

The opinion of the court was delivered by

This is an action of trover for the wrongful conversion of certain securities, called scrip, requisitions, and bonds.

The defendant was to make advances of money from time to time to the firm of Hyatt, Cox & Sheldon (who, in this action, are represented by the plaintiff Hyatt), and Hyatt, Cox & Sheldon were to place the securities, as fast as received, in the possession of defendant, accompanied by an absolute assignment in writing.

Various amounts were drawn by Hyatt, Cox & Sheldon from defendant, and the securities, placed in the hands of the latter, were sold at different times for their market value, and placed to the credit of the firm.

These securities subsequently appreciated in value in a great degree. The plaintiff now insists that the defendant had no right to sell them without notice to him, and is, therefore, guilty of a conversion. Upon the facts set out in the bill of exceptions, the court below decided, that by the rules of law, the defendant had no legal authority to sell or dispose of the securities, and was therefore guilty of converting them to his own use.

Much argument and authority has been displayed upon the…