Morse v. Woods

5 N.H. 297 | Superior Court of New Hampshire | 1830

Richardson, C. J.,

delivered the opinion of the'Court

Barnet, by placing the receipt of Wells in the hands of the plaintiff, made How’s noté a pledge for the payment of the judgment, .and Morse is now entitled to recover of the defendant the sum the latter received of Wells, unless by causing Barnet to be committed for the debt, for which the note was pledged, he must be considered as having elected to abandon the pledge. 8 Johns. 96, Brown v. Bemens ; 1 B. & P. 398, Roberts v. Eden; 10 Johns. 471, M'Lean v. Walker; 2 Vesey, Jr, 378 ; 5 Johns. 258, Garlick v. James; 2 Johns. C. R. 100 ; 2 Caine’s Cases, 200, Cortelyou v. Lansing ; 1 Equity Cases Ab. 139 ; 2 Salkeld, 522 ; 5 Pick. 59; Ward v. Sumner; 1 Wilson, 260, Ryall v. Rolle ; Com. Dig. " Mortgage;" A. & B. ; Yelverton, 178.

The question then, is, was the commitment of Barnet a release of the pledge ?

In the case of Cleverly v. Brackett, 8 Mass. Rep. 150, it was decided that where a creditor received from his debt- or a personal chattel in pledge as collateral security for the debt, he could not cause other chattels of the debt- or to be attached in an action for the same debt, without first returning the pledge. But no authority is cited in the case to sustain the decision, and it is believed that no. case can be found that will sustain it.

In the case of the South Sea Company v. Dancomb, 2 Strange, 919, it was held that where money is lent upon a pledge, the lender may have a remedy against the person of the borrower, unless there is a special agreement to stand to the pledge only.

And the better opinion is, that in case of a pledge, as-well as of a mortgage, the creditor may proceed against the debtor in the same manner as if there were no pledge, and is not bound to restore the pledge until the debt is paid. Yelverton, 178, Ralcliff v. Davis, note 1 ; 2: Starkie’s Cases, 72 ; 2 Gallison, 157 ; 7 Mass. Rep. 63, Carey v. Prentiss; 4 Mass. Rep. 247 ; 10 Johns, 482 ; 3 D. & E. 342 ; 1 Shoales & Lefroy, 173.

We are, therefore, of opinion, that the plaintiff is entitled to recover the sum, which the defendant received of Wells.

With respect to the money which the defendant received of Lyman, there is nothing in the case which shows that the plaintiff intended it, or that the defendant understood it, as a payment of any debt due from the plaintiff. The money must then be considered as received by the defendant as the agent of the plaintiff, and the defendant has no right to make any appropriation of it. without the consent of the plaintiff.

When a payment has been made generally, without any particular appropriation by him who pays, he who receives may appropriate. 3 Starkie’s Ev. 1091 ; 2 B. & C. 65, Simpson v. Ingham ; 1 Merivale, 604. But this is not a case of payment, and the rule does not apply.

It is, therefore, the opinion of the court, that the verdict must be set aside, and a verdict to be taken for the plaintiff for the amount of the two sums which the de* fendant has received.