dissenting:
I dissent from the judgment in this case. The defendant, Black, is treated in all respects'as if he had lawful possession and use of the steam-tug in question; whereas, in my judgment, his possession and use were entirely without law or *649right. He could have no better right than his principals, Neafie & Levy, and they had no right, pending the suit, but that of holding the tug in their possession as. a pledge for the payment of their debt. They had a mortgage upon it, and brought a suit to recover the debt due, and, under Article 275 of the Code of Practice, they sued out a sequestration of the tug. The defendant, Keyser, having failed to give a release bond, Neafie & Levy gave such a bond under the act of 1842, and the tug was delivered by the sheriff into their possession. This did not give them any right to use it. A sequestration is in the nature of a deposit, and is so treated in the old. law, as well as in the Civil Codes of Prance and Louisiana. See Code Nap. Liv. Ill, Tit. XI, Du Depot et du Sequestre; Louis. Code, 1808, Book III, Tit. XI, Of Deposit and Sequestration; Code 1825, Book III, Tit. XIII, ditto; CEuvres de Potliier, Tom. YI, Du Contrat de Depot. One of the first rules relating to a deposit is, that the depositary cannot use the thing deposited. Rev. Civ. Code, 1870', Art. 2940. A sequestration, if gratuitous, is subject to all the rules which apply to a deposit. Ib. Art. 2975. It is true that the Code of Practice declares that the judicial sequestration “does not mean a judicial deposit, because sequestration- may exist together with the right of administration, While mere deposit does not admit it.” Art. 270. But this right of administration is no more than the right (as well as the duty) of taking due care of the thing, as a prudent father of a family would do, to prevent it from deterioration. Some things would deteriorate without use. A railroad or a plantation would go to destruction. But these cases, and some others, are exceptional. As a general thing, movables are different. 'Without the owner’s consent they cannot lawfully be used for lucrative purposes by the person Avho has the mere custody of them. When the plaintiff obtains possession, they become in his hands a pledge for the payment of his debt. His lien or mortgage is converted into a pledge; and a pledge does not give the pledgee the right to use the thing pledged. The exceptions are stated by Lord Holt in Coggs v. Bernard, 2 Ld. Raym. 909, 916, 917, and summarized in Addison on Contracts, 3d Am. Ed., N. Y. 1876, § 1090, where *650it is said: “ If tlic pawn be something that will be the worse for wear, as clothes, the pawnee cannot use it; but if it will not be the worse for wear, as jewels, the pawned may use them; but then it must be at his peril; for, if lie is robbed in wearing them, ho is answerable. Also, if the pawn ho of such a nature that the keeping- is a charge to the pawnee, as if it be a cow or horse, cl c pawnee may milk the cow, or ride the horse; and this is in recompense of the keeping.” The rule is derived from the civil law. The Institute says: “Theft is committed not only -when one man removes the property of another to appropriate it to himself, but also generally, where one man uses the property of another against the will of the proprietor; thus, if a creditor uses a pledge, or a depositary the deposit left with him, &c.” 'Lib. IT, Tit. I, § YI. Mack-cldey says of the pledgee: “ lie. is liable for every wrong (cuI-iho) ; ho dare not use the pledge -without special permission, .otherwise he is liable for casual damages resulting to it.” Homan Law, Look II, Title First, II, 4, § 441, Am. Ed. 1883, ( translated from 14th German Ed.).
The right of administration referred to in Art. 270 of the Code of Practice is vested in the sheriff who takes possession under the mandate of sequestration; but he cannot use seques-' tered movables except to prevent their deterioration. See Witkouski v. Witkouski, 16 La. Ann. 232; Owens v. Davis, 15 La. Ann. 23, 25; Parish v. Hozey, 17 La. 578; Avart v. King, 14 La. 62. And if he deliver them to the plaintiff, upon receiving the bond prescribed by the act of 1842, the latter obtains no greater right. If the defendant bonds them, as he may do, he may use them, because they are his own property; but even he can make no improper use of them, so as to destroy' their value to answer the judgment that may be rendered against him. Article 280 expressly provides that “ the security thus given by-the defendant, when the property consists in movables, [or in slaves,] shall be responsible that he shall not send away the same out of the jurisdiction of the court; that ,he shall not make an improper use of them; and that he will faithfully present them after definitive judgment, in case he should be decreed to restore the same to the plaintiff.” This *651is entirely different from what is said in regard to the plaintiff when .he bonds the .goods. The only right given him. is “to take the property sequestered into his possession.” Code Pr. 279; Laws Louisiana, 1842, 204. Possession is all that 'the plaintiff .acquires pending suit. And the reason is very apparent : the movables do not belong to him; he only holds them as a pledge, and the property in them remains in the defendant until they are sold under execution upon the judgment. ■
There can be no question that a steam-tug is such a movar ble as may be safely kept without use, or that a pledge of if confers no right of usé without a special agreement with the .owner.
If this is a correct view of the law, neither Neafie & Levy, nor their agent or lessee, Black, acquired any right to use the steam-tug, but were guilty of tort in using it without Keyser’s. consent. ' They became liable to him not only for all benefit and advantage they derived from its use, but for all deterioration and wear and tear occurring by such use. They are to be treated as tort-feasors, and not as lessees under Keyser.
Now, it appears from the findings that Black realized over $14,000 -.from the use of the tug, either from her actual earnings- in towing, or by virtue of the position she occupied, in his name, in the squadron of the Towing Association; whilst his actual expenses, including insurance, coal, commissions, afid everything he could- count up, amounted only to $4429. Yet-Keyser received credit from these disinterested users of his property for only $2600. It seems to me that this one-sided settlement, made by the tort-feasors themselves, ought not to receive the sanction of a court of justice. The plaintiff sues as upon an implied contract, it is true; but that does riot prevent his.recovering all that, in equity and justice, he ought to recover. I think that the judgment should be leversed, and a new trial directed.