22 Gratt. 254 | Va. | 1872
delivered the opinion of the court. After stating the case he proceeded:
In the petition of appeal various errors in the decree are assigned, but it will be necessary to notice only a few of them. The counsel for the appellants contended that the State court, and not the Federal court, had jurisdiction of the controversy, and in this view we concur with the counsel. It sufficiently appears in the record that before the appointment of Camp as receiver, and while he was acting as trustee, he transferred the note and bonds to Burke, Herbert & Co., whose duty it thenceforward became to collect the note, and make the-
The counsel for the appellants very properly placed no reliance on, if he did not expressly waive, such of the assignments of error as are plainly untenable. For instance, he placed no reliance on the first assignment of error, “That it was the duty of Camp, as trustee of the bank, to have received the notes of the bank in payment of the petitioner’s negotiable note due to the;a bank.” That it was not his duty to have done so, was expressly decided by this court in the cases cited by the counsel of the appellee, Camp, of Exchange Bank of Virginia v. Knox, &c., and Farmers Bank of Virginia v. Anderson & Co., 19 Gratt. 739. It is proper to state, however, that those cases were decided after the appeal was applied for in this case. For did he place any reliance on the fourth assignment of error, “That the said note is invalid and inoperative, the same having been made at
But we will proceed at once to consider the only assignments of error relied on by the counsel for the appellants. They are the fifth and the sixth.
The 5th is in these words: “There being no special agreement to confer on the bank the power to sell the security, it was not competent for the bank to sell, much less Burke, Herbert & Co.”
In regard to the right of a pawnee or pledgee to make the pawn or pledge available, the law is thus laid down in 2 Kent’s Com. 582, marg.: “ The English law now is that after the debt is due the pawnee has the election of two remedies. He may file a bill in chancery, and have a judicial sale under a regular decree of foreclosure; and this has frequently been done in the case of stock, bonds, plate and other chattels, pledged for the payment of the debt. But the pawnee is not now bound to wait for a sale under a decree of foreclosure, as he is in the case of a mortgage of land (though Lord Chancellor Harcourt once held otherwise), aud he may sell without judicial process, upon giving reasonable notice to the debtor to redeem.” To the same effect is the law laid down in 2 Story’s Eq. § 1008. In ordinary cases no special agreement is necessary to confer on the pledgee
We, therefore, think it was competent for the bank to sell the bonds in this case, or would have been if the bank had not transferred them to Burke, Herbert & Co. We also think that it was competent for Burke, Herbert & Co., as transferees of the note and bonds, to make the sale.
The sixth assignment of error is in these words: “Even if the creditors had authority to sell without judicial proceedings, personal notice to redeem, and of the time, place and manner of the intended sale, must be given to the pledger. Ko such notice was given. 16 New York R. 392 ”
Certainly before a sale can be made by the pledgee, without judicial proceedings, he must give reasonable notice to the debtor to redeem. Such notice is iudis
We are, therefore, of opinion that there is no error in the decree, and that it ought to be affirmed.
Decree arrirmed.