(e) Hunt v. Haskell, 11 Shep. 339. This was an action of trover brought by the owner of twenty-five boxes of clocks, against the captain of a vessel who sold them for freight due thereon. The goods were shipped by the plaintiff on the defendant's vessel, from Boston to Bangor, the captain paying a bill of charges at Boston. Owing to ice in the river, the goods were discharged at Frankfort, below Bangor, and the defendant demanded his freight and advances. The owner thinking the demand too large, tendered what he admitted to be due, and demanded the goods at Frankfort. The defendant refused to receive the amount tendered, and caused the goods to be sold at auction for the amount claimed by him and expenses of sale. The counsel for the defence claimed that there was no wrongful conversion of the goods, as the defendant had a right to make the sale as a common carrier. He argued, that as the lien was admitted to exist, the mode adopted was the only practicable one for giving effect to it; the equity powers of the Supreme Court of the State not extending to a case like this, and the admiralty process in the Court of the United States, if available, being an inconvenient and expensive remedy at best. On the other side, it was contended, that the defendant, if entitled to freight, either in full or pro rata itineris, had no right to sell the property for the payment thereof. The opinion of the court was given by Williams, C. J., who said: "It is very clear that the defendant had no right to cause the sale, of his own mere motion, and without the intervention of legal process for the purpose.

The law-merchant recognizes no such right on the part of carriers by sea, under a common bill of lading, such as the defendant had signed in this instance. If the plaintiff was willing to receive his goods at Frankfort, which, by his tender and demand of them there, it seems he was, the defendant might well insist upon a pro rata freight, and on detaining the goods until it was paid; but a simple detention only, in the first instance, was all he could insist on. It was urged that the defendant was without a convenient remedy, unless the course he pursued can be sanctioned.-But it is not for courts to alter an estab-" lished law. It is the duty of courts, as has often been remarked, to expound and apply the law, as it may be found established, and not to legislate." The plaintiff having claimed that the true measure of damages was the value of the goods at the time of the conversion, notwithstanding, as appeared by the evidence, he had got possession of them again, by causing them to be bought at the sale, by a friend, at a small expense, the court decided upon this point, that whatever damages he sustained, over and above what was fairly due to the defendant, in regaining possession of the goods, he was entitled to, as the true measure of damages. Say the court: " He cannot have judgment for the value of the goods; for he was never divested of his property in them. Neither the acts of the defendant, nor the sale at auction, nor being* in market overt, there being none such in this country, as there is in England, could effect a change in the right of property. The plaintiff, if his tender was sufficient, might have maintained an action of replevin for the goods, against the defendant, or against any purchaser at the auction sale, as well as trover against the defendant; and the latter action is maintainable only upon the ground that the defendant had done, in reference to the goods, what was unauthorized by law. Doane v. Russell, 3 Gray, 382; Crumbacker v. Tucker, 4 Eng. (Ark.) 365; Thames Iron Co. v. Patent Derrick Co. I Johns. & Hem. Ch. 93; Fox v. McGregor, 1 Barb. 41.

1 An innkeeper waives his lien upon a chattel by a sale of it to reimburse himself, although its retention is attended with expense. Mulliner v. Florence, 3Q.B.D. 484. - K.

Where the lien is by act of party, it is held that the bailee may use the property as the owner would, unless it will be the worse for use. But the property will be at the risk of bailee * while in use. (g) Where, however, the special interest arises by operation of law, the bailee has no right to use. (h)

A voluntary surrender of possession to the owner or any agent of his, destroys the lien, and it cannot be recovered, by resuming possession.2 There may, however, be a retransfer of possession

(f) Pothonier v. Dawson, 1 Holt, 383; Waller v. Smith, 5 B. & Ald. 439; Wheeler v. Newbold, 5 Duer, 29; 8. c. 16 N. Y. 392; Parker v. Brancker, 22 Pick. 40. The plaintiff, a merchant in Boston, consigned to Brancker, Delius, & Co., commission merchants in Hamburg, a quantity of coffee, on which, according to previous agreement, the latter made large advances. The plaintiff, in his letters of instructions, limited the coffee at so high a price that the defendants could not sell it. A suit was brought by the defendants in the present action, for the amount of their advances to Parker, and they recovered judgment, credit being given for the amount of the net proceeds of the coffee, which Brancker, Delius, & Co. had sold for less than the limits, during the pendency of the suit. Parker instituted this suit against the dofendants, as soon as the sale of the coffee below his limits was known to him, and claimed damages for their not selling the coffee at his limit at a certain time, and secondly, for afterwards selling below his limit, after having commenced their action to recover back their advances. Upon the evidence adduced in the case the Chief Justice at the trial instructed the jury that a commission merchant, having received goods to sell at a limited price, and made advances upon such goods, had a right to reimburse himself by selling such goods at the fair market price, though below the limit, if the consignor refused, upon application, and after a reasonable time, to repay the advances. To this instruction the plaintiff excepted, and the question was reserved for the full bench. In giving the judgment of the full court, Wilde, J., says: "The rule of law thus laid down (by the Chief Justice, at the trial), appears to the court to have been stated with perfect accuracy, and with all the Qualifications which are applicable to the defendants' right of sale, as claimed by them on the evidence. The law appears to be well settled, both in England and in this country, that the pledgee of personal property, after the debt becomes due, may sell without a judicial process and decree of foreclosure, upon giving reasonable notice to the debtor to redeem. In the present case the defendants were not merely pledgees, but they were expressly authorized to sell the property consigned to them, and thereby to reimburse themselves for their advances. There was no time limited within which the sale was to have been made. The defendants were therefore bound, by their acceptance of the consignment, to wait a reasonable time, if the sale could not be made for the price limited, although by the delay their security might be impaired. But after such a reasonable time had elapsed, and a demand had been made upon the plaintiff to repay the money advanced, and he had refused so to do, he had no further power, by any principle of law or justice, to control the defendants' right of sale to their prejudice. Porter v. Blood, 5 Pick. 54; Howard v. Ames, 3 Met. 308.