Per Curiam, delivered by Kent, J.
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 [202] books involve the inquirer in considerable doubt and difficulty in the discussion of these questions, nor do the English courts appear to have defined and set-tied them with their usual accuracy and precision.
The note in question came under the strict definition of a pledge.* It was delivered to the defendant with a right to detain, as a security, for his debt, but the legal property did not pass, as it does in the case of a mortgage, with a condition of a defeasance.~-~ dash;- The general ownership reiiiained with the intestate, and only a special property passed to the defendant. It is, therefore, to be distinguished from a mortgage of goods, for that is an absolute pledge, to become an absolute interest if not redeemed at a fixed time. Besides, delivery is essential to a pledge ; but a mort- gage of goods is, in certain cases, valid without deli-
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, [203] that the pawnor has his life, as a time to redeem, where no time of redemption is fixed, must be taken with this qualification, that the~defendant does not, in the mean time, call upon him to redeem.
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 [204] pawnee. This last proposition has so much coun~ tenance in the books, that to determine on its valid~ ity it wrill be necessary to bestow a considerable at~ tention to the cases; and if I am not greatly mistakcn~ the result will show that it is wholly destitute of any solid foundation.
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* he observes, is sometimes made on the security of a pledge [sub vadii po~ sitione) and the pledge may consist of chattels, lands or rents.† Sometimes, possession is immediately given of the pledge, on receipt of the loan, and sometimes it is not. Sometimes the thing is pledged for a term, and sometimes without. When a chattel is pledged and possession is given, and for a certain term, the creditor is bound to keep the pledge safely, and not to use it to its detriment. If it be agreed that in case the debtor should not redeem the pledge at the end of the term, the pledge shall remain with the creditor as his own property, the agreement must be observed. But if there be no such agreement, and there be a fixed time of redemption, and the debtor make delay in payment, the creditor may quicken the redemption by a writ (of which he gives the form) and which requires the debtor without delay to redeem (acquietet rem quam invadiavit) the pledge.
On the return of the writ, if the defendant confessed the pledare,‡ he was commanded to redeem in a reasonable time, and on default, the [205] creditor had license to treat the pledge as his own.-— But if the pledge was made without" mention of any particular term,* the creditor might (debitumpetere) demand his debt at any time and the debt being discharged, the creditor was bound to restore the pledge without any deterioration.
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,* 7 J. I. in C. B. it was resolved by the court, that a pawnee had a special property in the goods pawned, and might use .the pawn, so that it was not to its detriment, and if he assigned over the pawn, the assignee would be subject to detinue, if he detained the pawn after payment by the owner.
This decision was correct, and in harmony with the ancient laws, as laid down by Glanvil and Bracton.† It considered a pawn in its true light, as a mere deposit of a chattel to be detained as a seen[206] rity, and that the general property was still in the pawnotp
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.
[207] But in giving their opinions, one of the judges said, that executors might redeem a pledge, and that it would be assets in their hands. The other four observed, that if time be limited to redeem, the death of either party previous to the time, could not prejudice the right; but if no time was limited, the pawnor had his whole life, and if he died before he redeemed, the right was gone, and his executors could not redeem. It were to be wished, that the reasons of the judges had been more fully reported than we find them in this case.
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[208] marid at any time upon the payment of the money as the pawnee hath but a special property in the goods, to detain them for his security~
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 [209] law over feoffments upon condition, surely it cannot bg^materiaL-that in personal contracts the executor should be named, for it is a general and well established principle, that they are affected equally as if named.
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.* That if goods pawned for a time limited, be not redeemed at the day, they are forfeited and may be sold at the will of the pawnee.
This doctrine is also held by justice Dodderidge, in his office of executors, he says the pawnee may dispose of it at his pleasure.† This last decision not having any direct application to the present case, may be passed over without much notice. It is contrary to the contract of pledge, which does not pass any absolute interest, nor rest on any absolute condition. It is, as we have seen, repugnant to the ancient law, and it is contradicted by a late authority. Comyns,‡ who is of himself a great authority, says, that if a man pledge goods for money lent, he may redeem, though he does not come at the day; and the practice has since become familiar.
By the lex commissoria§ at Rome, it was lawful for the creditor and debtor to agree, that if the debtor did not pay at the day, the pledge should become the absolute property of the creditor. But a law of Constantine, contained in the code, abolished this as oppressive, and with marks of indignation, declared that the memory of the former law ought to be abolished to all posterity. Such a rigorous decision as that in Rolle, is contrary to the law of Franceof [210]*2100f Holland, of Scotland, and, probably, of all other countries which have felt and obeyed the influence of the civil law ; and if it were really apart of the English code, in this instance also, we might say of these people, that they were truly “ to to divisos orbe” by their laws, as well as by their situation.
There remains only an extrajudicial dictum of C. J. Treby* and another of lord Hardwicke,† and both „ supported only by the c«se in Bulstrode, which go to show that a pawn is not redeemable after the death of the pawnor, and these are all the authorities, as far as I have been able to discover, on which the whole proposition has rested.
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, [211] no further connexion with the present question, than to show that where no time is fixed, an assignee is competent to redeem.
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.† In the case of the South Sea Company v. Duncomb, K. B. 5 G. II. it was decided, that where the pawnor of stock did not pay at the day stipulated, the pawnee had his election to sue for the debt, or to stand to his remedy [212] against the pawn. The court did not state the remedy, but still there was to be a remedy under the sanction of law, and the only remedies hitherto suggested in the books, are the process by writ, as stated in Glanville ; the bill of foreclosure, as hinted in other cases, and the sale by the pawnee, after notice, in cases of the transfer of stock, as seems to have been the practice.
■ 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 [213] sell when he pleases, without first calling on the pawnor, or if the pawnor’s right is gone by his sudden death, the law would establish a most disgusting speculation, infinitely more odious than the lex commissoria ,- for that was founded upon express agreement. And although the executor may not redeem, the pawnee has still his- election to sue, and the executor has not even the privilege of the equitable rule., qui sentit onus debet sentire commodum.
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.* And as this was not sufficiently observed, Justinian regulated the method of foreclosure by a particular ordinance, by which two years notice or two years after a judicial sentence was allowed to the debtor.†
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."‡ I believe there is no country at present, unless it be England, that allows a pledge to be sold but in pursuance of a judicial sentence.§
The third point raised in this case is as to the necessity of payment or tender of the money loaned [214] previous to the commencement of the suit. The payment of the money and the return of the pledge were to be concurrent acts, to be performed by each party at the same time and place. Each must show a capacity and readiness to perform, and yet neither was to trust the other personally. — The one was not actua% to part with his money, unless the other at the same time showed a capacity and readiness to return the pledge ; nor was the one to return the pledge until the other showed, at the same time, tire like capacity and readiness to pay the money ; the acts being reciprocal, and one dependent upon the other.
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,* and the same principle has been frequently advanced in other cases - — In the case of Judah, &c. v. Kemp, decided in this Court, October Term, 1801. — The suit was in trover for goods ; the plaintiff proved property and a demand and refusal; the defendant was master of a vessel and had a lien on the goods for freight; on demand he refused to deliver the goods, and said he had orders not to deliver them ; no tender of the freight, nor even a capacity to make one was shown; the defendant did not object to deliver on that, but upon another ground. The only question raised was, [215] whether tender of the freight ought to have been made, and the Court decided that it was not necessary as the act would have been useless, and they gave judgment for the plaintiff.
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, [216] ^ia* the cause of action arose then. From that ground the direction would have been erroneous. Putting out of view the previous sale, the plaintiff has not shown a cause of action by his act in 1799, for he ought at least to have shown, that he went with a readiness and a capacity to pay. The mental inability of the defendant, may have rendered him incapable of receiving an actual demand from the plaintiff, but it surely is not to be construed into a discharge to the plaintiff, from the performance of his duty, which was to come with a disposition and ability to perform his part of the contract; that act of the plaintiff was, therefore, wholly immaterial as a ground of action, and if the value of the note is to be estimated from that date, it must be because the plaintiff manifested his will to have it then restored.
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,* and of the adininistrator of Hunt v. Fuller, have long since settled, that if the chat~e1 after the conversion increased in value, or be attended with other circumstances, the damages may be enhanced accordingly. And in the case of Sheplzerd executor, &c. v. Johnson,† the defendant was sued for breach of contract, in not re[217] placing a certain quantity of stock by a given day, and the court held, as the direction had been to the jury, that the plaintiff was entitled to recover, not merely the value of the stock as it stood at the day, but the value as it stood at the time of the- trial. And they said it was no answer to say, that the defendant might be prejudiced by the plaintiff’s delay in bringing his action, for it was his own fault that he broke his engagement, and he might replace the stock at any time afterwards, so as to avail himself of a rising market; I have no doubt it is just and right that the plaintiff in the present case, ought to recover the value of the note at the time he chose to demand it ; he has selected that time to call for his note and to liquidate its value, and no other measure of damages short of that, will indemnify him for the loss of the pledge ; I agree, therefore, on this ground to the direction that was given.
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.