2 Cai. Cas. 200 | N.Y. Sup. Ct. | 1796
The points relied on by the defendant are,
1. That he had a right to dispose of the certificate.
2. That the pledge had become absolute by the death of the pawnor.
3* That a tender of the money was requisite before suit,
4. That the rule of damages was subject to the discretion of the jury.
The two first questions raised in this case, respect the rights of the parties over the depreciation note thus deposited with the defendant; the one claiming a right to redeem, and the other to sell it; each reciprocally denying the other’s pretensions. But the
The note in question came under the strict definition of a pledge.
Very. The mortgage and the pledge, or pawn of goods seem, however, generally to have been confounded in the books, and it was not until lately, that this just discrimination has been well attended to and ex-
plained. I find no difficulty in saying that the defendant had no authority to sell the pledge at the time he sold it. It was, at that time, an illegal conversion of the intestate’s property. The pledge was delivered with- out any specified time of payment or redemption.— It was to remain in the defendant’s hands to be deliv- ered upon payment. The cases relied on by the de- fendant’s counsel admit, that in such a case, the pawnor has his whole life-time to redeem. If this be so, the defendant had no right to sell during the pawnor’s life ; because the one right would be incon- sistent with the other. The expression,
This he certainly must have a right to do. The manner in which that call is to be made, and, in case of the pawnor’s default, the manner of disposal of the pledge, are distinct points which I need not now discuss ; because, in the present case, no call whatever was- made upon the intestate, previous to the sale of the note. There is no instance to be found, in case of a deposit, for an indefinite time, where the pawnee sold in the life-time of the pawnor, and without making a previous demand, that such sale was held good. The sale by the defendant was, therefore, clearly unauthorised and illegal.
The next, and the more difficult question is, whe« ther the representatives of the pawnor have a right to call upon the defendant to restore the pledge or its equivalent. That the intestate had such a right is not to be disputed, and the point is, whether it be such a right of action as died with the person, or whether, as in all other cases of a right in action, not founded on a personal tort, it descended to the plaintiff. If the right of action did not descend, this will be the first case, I apprehend, that ever existed, in which the remedy for the conversion of one’s property, was limited to the life-time of the party injured. But it is said to be immaterial, what was the defendant’s conduct in respect to the pledge, since where no time was fixed, the pawnor must redeem in his life-time, and if he dies without redeeming, the property in the pledge becomes absolute in the
Glanvil, the earliest of our juridical classics, has treated the subject with a precision not to be found in the authorities of a subsequent period, and with a perspicuity and simplicity that bespeak a writer °* a primitive age. A loan
On the return of the writ, if the defendant confessed the pledare,
This authority establishes two points.
1st. That if the pledge was not redeemed bv the time stipulated, it did not then become absolute property, in the hands of the pawnee, but the pawnee was obliged to have recourse to the aula regís., and to sue out an original writ, in order to obtainjtuthority to dispose of the pledge.
2d. That if the pledge was for an indefinite term, the creditor might, at any time, call upon the debtor to redeem by the same process of demand. By what authority the judges in the time of James I. advanced a different doctrine on the subject, is not made to appear. The rights of the parties arising out of the case of a pawn, underwent, however, a considerable discussion in three several cases during that reign.
In the case of Mores v. Conhem,
This decision was correct, and in harmony with the ancient laws, as laid down by Glanvil and Bracton.
The next case is, that of Sir John Ratcliffe v. Davis, 8 J. I. in K. B. That was a suit in trover, and the special verdict stated, that the plaintiff had pawned a hat-band, set with jewels, unto one Whitlock, a goldsmith, for 25l. no day was set to redeem. The pawnee on his death-bed, delivered the pledge to the defendant, with a request to keep it till the money was paid, and then to deliver it to the plaintiff. The pawnee then died, and the plaintiff tendered the debt to his executor, who refused to receive the money, and then he applied to the defendant, and after a demand and refusal, brought his suit. The court gave judgment for the plaintiff; and of course decided all the points arising out of the verdict, which were, that the tender to the executor, was well made; that by the tender and refusal, the special property in the pledge, revested in the plaintiff; that the general property had been constantly in him ;. that the deathof the pawnee did not destroy the right of redemption ; that refusal by the defendant after tender to the executor, was a conversion, and that the defendant had only the bare custody of the pawn.
This decision was in every respectreconcileable with the ancient law. It maintained without diminution, all the well known and settled rights of the respective parties ; and had not the erudition of the judges (according to the taste of those times) carried them far beyond the record before them, and led them to discuss points, not relevant to the issue, we should^ probably, never have heard of the present question.
In the case as reported in Bulstrode, the only reason stated is, that it would be very mischievous to compel the pawnee to keep the goods thus pawned, for such an indefinite time, when he hath paid sufficiently for them. But this objection would have been found to have had no validity, if they had only attended to the law as laid down by Glanvil, who says, as I have already stated, that where no time is fixed, the creditor might quicken his debtor’s delay, and demand his debt at any time, the process for which he has given. From the case as reported in Croke, it is very questionable whether the court ever agreed in these extrajudicial dicta. He states that two of the judges held, that redemption could not be made after the death of the pawnor ; for he, at his peril, ought to redeem in his time, as it is upon a mortgage ; but that the others (and who were the majority) held otherwise, for that pledging doth not make an absolute property as in the case of a mortgage of land ; but it is a delivery only until he pays, &c. So it is a debt to the one and a retainer of the thing to the other, for which there may be a re-de
In Yelverton and Noy, the opinion of the court is, however, given as it is in Bulstrode, and the reason stated is, that the pledge is a condition personal, and extends only to the person of him, who pawned it.&emdash; Supposing, then, this to be the more correct report of the case, the ground of the opinion is equally unsound; a pledge is not a property created upon a condition of defeasance like a mortgage. It has no analogy to the case of a right which is absolute to vest, or to be defeated on the happening of an event, nor is it susceptible of that strict construction, unless it be so modified by the express agreement of the parties. 1 Least of all is it a condition personal, to be performed exclusively by the pawnor. There is nothing of this in the nature of the contract, and in most cases, as when the time of payment is mentioned, it is agreed, that the right may remain perfect in the representatives of the parties.
In feoffments of land, upon condition that the feof~ fee do an act, and no time be limited, there he bath only his life-time; but if his heirs be mentioned, the condition is not broken by his death; but extendeth to his heirs indefinitely without limitation of time, and cantiot he broken except upon request made by the feoffor or his heirs~
If the naming of the heirs would, in this case, do away the limitation of this condition to the person of the feoffor, even according to the rigid construction that used to prevail, under the genius of the feudal
This notion of a pledge, resting upon the performance of a condition, to revest the right as in the case of a mortgage, probably led to the decision in Capper v. Dickinson, K. B. 13 Ja. 1.
This doctrine is also held by justice Dodderidge, in his office of executors, he says the pawnee may dispose of it at his pleasure.
By the lex commissoria
There remains only an extrajudicial dictum of C. J. Treby
In the chancery cases of Tucker, administrator, &c. v. Wilson, in 1714, and Lockwood v. Ewer, in 1742, and Kemp v. Westbrook, in 1749, it was said, that a pawnee of stock was not bound to bring a bill of foreclosure, and might sell without it. But in the two first cases, the stock had b'een, in the first instance, absolutely transferred to the mortgagee with . a defeasance thereto, that the assignment should be Void, or the .stock retransferred on payment at the day. They were cases, therefore, not of a pledge but of a mortgage of goods, and although it is no where stated, in what manner the mortgagee is to sell, yet, in the first of these cases, there was a previous notice to the opposite party, according to the rule of the civil law, and the giving of this notice, was asserted to be the constant practice. The last ease was strictly a pledge of chattels to secure a loan, without a specified time of payment; and the assignee of the pawnor who had become a bankrupt, was allowed to redeem, This case has,, therefore,
The two cases of Demandray v. Metcalf, in 1715, and of Vendezee v. Willis, in 1789, are cases of pledge, and perfectly in point in favour of the plaintiff. In the one case, there was a pawn of jewels, and in the other of bonds and securities. In both eases, the time of payment had elapsed, in the life of the pawnor; he died, and the executors, on a bill to redeem on payment of the debt and interest, obtained a decree accordingly. It is said, indeed, in the first case, that the executors could not have back the jewels, without the assistance of chaneery.
If by this was meant the identical chattel pawned, it was, perhaps, correct; but if the observation meant that the executors had no remedy but in equity, it must be a mistake ; for a court of law has complete jurisdiction over the subject, and is equally competent to grant relief where the right of property is not extinguished. It would be unreasonable to turn the plaintiff round to another forum, when there are no technical difficulties to impede, nor any defect of authority to give him redress here, by restoring to him, if not the specific thing, yet its equivalent. - If a court of law will permit the one party to demand his debt after the time, it will equally permit the other party to tender and redeem.
■ From this review of the cases, I conclude, that whatever right to redeem existed in the pawnor at his death, that right descended entire and unimpaired to his representative. There are two decisions fully to this effect, and there is not a decision to the contrary, or one which establishes, that if no time be limited to redeem a pawn, the right to redeem is extinguished by the pawnor’s death.
The several dicta in the courts which go thus far, are founded on principles manifestly erroneous.—■ They departed from the true nature of a pawn, which was well understood in the Roman law, and well understood in the days of Glanville and Bracton, who were, no doubt, greatly instructed by that inestimable system of civil jurisprudence, although, with respect to Glanville in particular, he wrote the English law of his time, without much, if any, adoption •from the Roman. The error consisted in applying to pawns the severe feudal doctrine of absolute forfeiture upon breach of a condition, whereas a pawn is in no respect an estate resting upon condition..
It would be a doctrine the most intolerable and oppressive. In one of the cases mentioned, a pawn worth 600/. was deposited to secure a loan of 200/. and if no time be mentioned, and the pawnee can
It may be well enough to observe, by way of illustration, that except in cases of special agreement, the Roman law never allowed a pledge to be sold by the creditor, but upon notice to the debtor, and the allowance of a year’s redemption.
It was moreover a well settled rule in that law, that the creditor could never hold the pledge by prescription ; and that no length of time would preclude the debtor and his representatives from the right to redeem, and the reason given is very conclusive, because the creditor holds not as his own, but in another’s right, “ alieno nominepossidet."
The third point raised in this case is as to the necessity of payment or tender of the money loaned
But when one party has incapacitated himself to perform his part of the contract, there is no need of the other coming forward at the time to make a tender, or to show himself in a capacity to pay, because it would be a nugatory act which the law will never require.- — If the one party discharges the other from, a performance, by .saying he will not perform on his part (and voluntarily and tortiously rendering himself unable to perform his part is equivalent to such discharge) it is well understood, that it is not necessary for the other party to go forward. This was so decided in the case of Jones v. Barkley,
The last question is as to the rule of damages.— If the direction of the judge was correct, or if the rule is to be given by the court, then the verdict is to stand, and to be made conformable to such rule. But if the damages are to be considered as in any degree subject to the discretion of a jury, a new trial is to be awarded.
There is no doubt but that the measure of damages is sometimes a question of law, but more frequently it is to be left at large to the discretion of a jury. In cases where there is a criterion for an accurate computation, that criterion must be followed, and it becomes, then, a rule of law.
The value of the depreciation note is the measure of damages in the present case; and the only question is, how that value is to be ascertained. If it is to be ascertained from the face of the note ? or from what time is that value to be computed ? There must be some rule or principle on the subject, and that principle, whatever it may be, is a question of law, and not of an arbitrary ad libitum discretion in the jury. A great part of our common law jurisprudence is only a collection of principles, to be selected and applied to particular cases, by the discernment and diligence of the courts. I have no doubt the rule in the present case is a rule of law, and the only examination is, to discover it.
The direction at the trial was, the value of the certificate in 1799, when the plaintiff went to make a demand. This must not be understood to mean,
The value of the chattel, at the time of the conversion, is not, in all cases, the rule of damages in trover; if the thing be of a determinate and fixed value, it may be the rule, but where there is an uncertainty, or fluctuation attending the value, and the chattel afterwards rises in value, the plaintiff can only be indemnified by giving him the price of it, at the time he calls upon the defendant to restore it, and one of the cases even carries the Value down to the time of the trial.
The cases of Fisher v. Prince,
These were all the points that were stated in the ease, or raised upon the argument; and they being with the plaintiff, I take it for granted, he is entitled to judgment, and a new trial ought to be denied.
Dig.lib. 13.tit. 7.§9. 1Hub. 291. § 15- Brooke's Abr. tit. Plc ges, 20. 2 Vezerjun. 378. 1 Powell on Mort. p. 3.- Bracton, 99. b.
Glanvil,lib.10. c. 1. p. 59.
1 Reeves, 161.
Ib. 162.
1 Reeves, 163.
Owen, p. 123.
Glanvil ut supra, Bracton, 99 b.
1 Rol. Rep. 315.
1 vol. 76. 81.
Dig. tit. mortgage by pledge of goods, b.
Code, lib. 8. tit. 35. ch. 3. 3 Hub. 21038. sec. 17. 1 Domat. 362. sec. 11.
1 Ld. Raymond. 434.
1 Vez. 278.
Str. 919.
Perezius on the Code. vol. 2. 62. tit. 34. sec. 4. 5. do. p. 58. Huberus, vol. 1 p. 157. sec. 2. vol. 3. p. 172. sec. 6.
Inst. lib. 2. tit. 8. sec. 2. Dig. lib.13. tit. 7. c. 4. Code, lib. 8. tit, 28. c. 4. and tit. 34. c. 1.
Dig. lib. 41. tit. 3. c. 13. Code, lib. 4. tit. 24. c. 10. See also Perezius, vol. 1. p. 267. sec.l2. 13. and 1 Domat. 368 sec 7. Huberus, vol 3. p. 1077. sec.11. See also Halled's Gentoo Code, p. 118, which allowed a redemption after the debtor's death.
Huberus, vol. 3. 1072. sec. 6. and Perezius, vol. 2. 63. sec. 8. as to Holland and Brabant. Domat. vol. 1,362. sec. 9, 10. and 2 Ersk. 455, as to France and Scotland.
Doug. 684. Rawson v. Johnson, 1 East, 208.
3 Burr. 1363. 2 Black. Rep. 902. See also 6 Durnf. 696.
2 East, 211.
2 Co. 79. the Cord Cromwell's case. Dy. 139 a.
Prec in chan 430 2 Vern.691s 698. 1 Eq Ca. Abr. 324 Gilb Eq. Rep.104. 3 Bro. 21.