By the Court,
Nisbet, J.
delivering the opinion.
It appears by the record, that the defendant, acting as agent for the plaintiff below, sold certain goods for his principal, and at the same time a small amount of goods of his’own ; and took in payment for the whole, a note uponsix months’ time; The plaintiff brought trover for the note. In the motion for a new trial, it is claimed that the Court below, admitting the* proposition of the defendant, that trover will not lie in favor of one tenant in common of a chattel, against his co-tenant, except in case of the destruction of the joint property, yet erred, in ruling that the doctrine did not apply to this case. The counsel for the defendant below, who is the plaintiff here, asserts, that, inasmuch as the note for which the action was brought, was taken in payment of goods belonging in part to the defendant, he became thereby a tenant in common of the note with the plaintiff, and .if so, the plaintiff has no right to bring trover for it against him. The Court held that an agent, by a wrong act, by an act without his powers, cannot create the relationship of tenancy in common with his principal, without his consent; that there is no tenancy in common in this case, and therefore the action will lie.
[435]*435[1.] As a general rule, it is not denied anywhere, but that trover will not lie in favor of one tenant in common against his co-tenant. The reason is, that the one tenant is as much entitled to the possession as the other. The possession of one is, in law, the possession of both. Co. Lift. 200, a. Cowp. 450. 1 T. R. 658. Salic. 390. 1 Taunt, 241. 2 Leon, 220, case, 278. 2 Cr. M. Sf R. 1. 5 Tyr. 551. Elementary books, title Trover. 2 Kelly, 73.
An exception to this rule, is where there is a destruction or loss of the common property by one of the tenants. Barton vs. Williams, 5. B. & Ald. 395. Farrar vs. Beswick, 1 M. & W. 688. Hyde vs. Stone, 7 Wend. 354. Wilson vs. Reed, 3 Johns R. 175. 7 Con. R. 95. 2 Kelly, 73.
Another exception is found in the case of a sale of the whole property by one tenant. Tenants in common having equal right of possession, and an undivided property, one has no right to dispose of the property and transfer the possession, to the injury of the other. In this regard they are unlike partners. Wilson vs. Reed, 3 Johns. R. 178, 179. Hyde vs. Stone, 7 Wend. 354, White vs. Osborne, 21 Ibid, 72 Waddell vs Cook, 2 Hill’s N. Y. R. 47. Barton vs. Williams, 5 Barn, Ald. 395. Farr vs. Smith, 9 Wend. 338. Lucas vs. Wasson, 3 Dev. R. 398. 2 Dev. Bat. 252. 2 Kent Com. 350, note. Hinds vs. Terry, Walker, 80. But see Contra, 4 East, 110. T.Raym. 15. 7 Con. R. 95. 2 Johns. R. 468. The weight of authority is in favor of the exception, as last stated, and it would seem too, that for the like reason, any user of the joint property, which amounts to a disclaimer of the title of the co-tenant, or which is inconsistent with his right of property, ought to constitute an additional exception. There is no question, therefore, but that both the counsel and the Court below, rightly held the law, upon the general proposition. We think with the Court, however, that this is not to be considered a tenancy in common. '
[2.] A tenancy itLCOmmon is created either by deed, (the act of the parties,) or by a destruction of an estate in joint tenancy, or in cpparcenary. Here there was no previous "estate out of which a tenancy in common could spring, and no act of parties. The record shows no assent of the plaintiff to the act of the defendant ; blending in the note a claim in his own right, with one due to the plaintiff. There was no accord — no agreement — no [436]*436assent to this act. It was the act of the defendant, and his alone. I might add that a tenancy in common may in this country be created by descent. Our view of the relationship of these parties is, that by agreement, it constituted a special agency. And of this more anon. If the defendant was the agent of the plaintiff, I cannot perceive how it is possible for him to take any benefit from the act of combining in one note, a small sum due to himself with a larger sum due his principal. That act was not within his powers as agent, it was a violation of his duties to his principal, and was done at his own peril. It would be strange if he could, by any act of his own, without the consent of his principal, annul or vary the obligations created by his contract of agency, and change altogether the relationship which the law under that contract establishes. He could not thus vary the rule of his own liability, and secure to himself rights inconsistent with his character as agent. If he could in one particular, he could as to all. If he could defeat the plaintiff’s right of action for this note, or damages to the amount of his interest in it, by making, at his own mere motion, a joint tenancy with his principal, then the whole contract was at his control. Either he is agent, or not; if he is, then he cannot be at one and the same time tenant in common with his principal, of the property which is the subject matter of his agency. The rule upon this subject is severe against the agent. The law holds him to a stringent fidelity to his principal. It exacts of him care, diligence, and exclusive management of his fiduciary affairs. He may suffer loss, but can take no benefit by any thing he does, other than what he contracts for. One of his duties, is to keep his own property separate and distinct from his principal’s ; and if he does confound them it is at his own risk. If he mixes his own with the property of his principal, and is unable to distinguish the one from the other, the whole will be adjudged to his principal. This is the rule at Law and in Equity. The plaintiff, by that rule, if it were impossible to distinguish what amount of this note belonged to him, and what to the defendant, would be entitled to recover the whole sum embraced in it. Chancellor Kent lays down the rule thus : “If a party having charge of the property of others, so confounds it with his own that the line of distinction cannot be traced, all the inconvenience of the confusion is thrown upon the party who produces it, and it is for him to distinguish his own property or lose it. If it be a case of dama[437]*437ges, damages are given to tbe utmost value tliat the article will bear.” • Hart vs. Ten Eyck, 2 John. Ch. R. 108. 1 Stra. 505. Lupton vs. White, 15 Vesey, 432. 2 Vea. & Beame, 265. Story on Ag. 193. Palcy on Agency, by Lloyd, 48, 49, 51. Wren vs. Kirten, 11 Vesey, 369, 382. Fletcher vs. Walker, 3 Madd. R. 73. 3 Chitty on Com. & Mancef Ch. 3, p. 215, 220. Smith’s Merc. Law, 48, 49, 50. 8 Vesey, 49, 50. 1 Story’s Eq. Jurisp. Sect. 468, 623.
So we do not think that there is any error on this ground.
[3.] According to the evidence, the defendant became the agent of the plaintiff to sell an invoice of buggies, harness and carpeting for him. The goods were delivered to the defendant. By the contract, no compensation is providedfor the agent. He was to respond to the plaintiff, if the goods were sold, in the amount of the invoice prices, “ clear of all charges, expenses, commissions, and defalcations,” and was to have ninety days within which to dispose of the buggies, &c., or return them. The defendant having sold all the goods, as the plaintiff alleges, and taken a note at six months for the price, the plaintiff, before the expiration of 90 days, brings suit for the note, setting up no claim to so much of it, as embraced the price of two buggies which belonged to the defendant. Upon the hearing the Jury rendered a verdict for the plaintiff for the whole amount of the invoice claimed by him. One ground for a new trial taken by the defendant, is that the Jury found contrary to evidence, in this, that there was no evidence whatever adduced on the trial, of the, sale by the defendant of the harness and carpeting mentioned in the two last items of the invoice. The Court refused the rule on this ground, and that is assigned as error. The criterion of damages for the plaintiff, if entitled to recover at all in this action, is, the invoice price of such of the articles as he did in fact, sell. By the contract, he was not bound to sell; he undertook to r'espond to the plaintiff if the goods were sold. And the plaintiff was proven to have admitted that he had 90 days within which to dispose of or return them. The plaintiff’s verdict, therefore, ought to have been for the price of the articles sold — no more and no less. Applications for new trials are addressed to the sound discretion of the Court. And when asked because of a finding of the Jury contrary to evidence, are rarely granted. As the Juries are the judges of the facts, if there be any evidence to sustain a verdict, it ought not to he disturbed [438]*438but for a good cause. The Court, however, must have the power of controlling an unjust verdict, and with it is left the decision of the question whether the verdict be unjust or not. The Court will, although with great carefulness, and only in cases of manifest and flagrant injustice, set aside a verdict where there is confessedly some evidence to sustain it. The Jury may be demonstrated to have been corrupted — they may have acted under the influence of violent and almost irresistible excitement from without aminfluence so great as to bias the calmest and most honest minds —the parties may have been surprised by a case falsely made upon the trial, it being in the last resort — the evidence may be so overwhelming in its aggregate weight against the verdict, as to leave no room to doubt of its flagrant injustice. Besides these instances, it may be safely asserted that where manifest injustice, on any account, has been done to a party, lie ought to be entitled to a re-hearing. “If unjust verdicts, (says Lord Mansfield, after enumerating several grounds upon which the Court may interfere,) obtained under these, and a thousand like circumstances, were to be conclusive forever, the determination of civil property, in this method of trial, would be very precarious, and unsatisfactory. It.is absolutely necessary to justice, that there should, upon many occasions, be opportunities of reconsidering the cause by a new trial.” 1 Burrow, 393. 1 Tidd’s Brae. 905. Any one conversant with our mode of Equity trials, and with the organization of our Court of Chancery, must feel that the power to set aside the verdict of a Jury,Us peculiarly necessary there. In that Court, the most involved, intricate, and the vastest estates, are often submitted to a Jury to settle. With no adequate time, or adequate ability for such a service, or adequate conveniences for the service, no wonder that, with the best intentions, the most ruinous mistakes are sometimes made by the {purest men. And what if there was no remedial power anywhere % Why, our whole system would be justly censurable for affording no sufficient protection to the rights of property.
If the finding of the Jury be clearly against evidence, or manifestly without evidence, the Court, I hold, has no discretion, but is bound, in Law, to grant a new trial. There is nothing in the Laws, the Constitution, or in Magna Charta, or in the great principle of Jury trials, which can justify, or for a moment tolerate a verdict without evidence, or contrary to all the evidence. [439]*439The Law will permit no such verdict; the Juries have no power to render it, and no Court should permit it to stand. You cannot predicate discretion of such a case. It is a case where there is none. There have been cases, particularly on the criminal side of the Court, or for penalties called by Lord Kenyon hard actions, where new trials have been refused, although the verdict be without evidence or contrary to evidence, provided it be consistent with the conscience, justice and equity of the case. Now, that there have been such cases, I know, (see Salic. 644, 648'. 4 Burrow, 469,) and that there may be again I can well imagine; but hard actions is not the rule, they constitute the exception. And in my judgment the exception ought to be watched with diligence. If a latitude so large as to find in any case without evidence, or contrary to the clear and manifest uncontradicted proof is allowed, it is an obvious remark to say that it is greatly liable to abuse, even with all the vigilance of the Court exerted to confine it to cases where the verdict is consistent with conscience, justice, and equity. A new trial may be moved then, on account of the error or mistake of the Jury in finding a verdict without, or contrary to evidence. 1 Burrow, 12, 54.. 3 Ibid, 665. 2 Ken. 375, S. G. 2 Burrow, 936. 3 Bar. fy Aid. 62. 10 Moore, 337. 3 Bing. 610. 4Bing. 195. 2Tidd’s Brae. 908. 6 Mass. 261. 1 Conn. 472. 2 N. fy M. 261. 1 McCord, 557. 3 J. J. Marsh, 440, 1 Bailey, 479. 3 Har. fyj. 9.
The plaintiff, we have stated, is entitled to recover' the invoice price of the articles sold by the defendant. If there is no evidence that the harness and carpeting were sold, the Jury had no right to render a verdict for them, and the new trial ought to have been awarded. We find no evidence that they were sold. The whole of the testimony relates to the sale of buggies — they are mentioned by the witness, who proved the sale, as the articles bought by him of the defendant — harness and carpeting are not named in a single instance, and the plaintiff, in a conversation testified to,, himself admits that the note was given for buggies. Nor are any circumstances or facts proven, from which it can be inferred that they were sold. The delivery of the harness and carpeting to the defendant was proven, but we are not, nor were the Jury at liberty to infer, from that fact, their sale. The defendant’s liability in this action does not grow out of the delivery, but out of the sale. One other circumstance relied upon, is proof that the plain[440]*440tiff set up a claim to the amouut of the invoice, in which amount the prices of these articles are included. That isnot evidence, even if made directly to the defendant, unless his silence or express assent was also proven. Neither was proven. From aught that appears from the record, the defendant made against that claim, so far as these items are concerned, the most vehement protestations. Carter & Wife vs. Buchanan, 3 Kelly, 522. Uncertain, indeed, would the rights of parties be, if a verdict could be allowed to stand, which is founded on an inference drawn from a statement, not itself legally in evidence;, made by the party in whose favor it wash'endered. It was argued that proof of the sale of buggies, is proof of the sale of harness and buggy carpeting. This idea seems to be founded upon the assumption that harness for the horse that draws the buggy, and carpeting to cover its floor, is, in some sense, part and parcel of the buggy. I apprehend that Courts, lawyers, merchants, a.nd manufacturers, would find no difficulty in denying the rightfulness of the assumption. Mr. Dealing, who bought the buggies, would hardly like to be held bound by that purchase, for harness for each buggy. It would be rather hard to hold him a purchaser of harness, because he would be unable to use a buggy without it; or a carpet, because a carpet would protect the floor, and make it more comfortable. Harness no more goes with a buggy, than a saddle with the horse, -• — and carpeting no more goes with a buggy, than with a dwelling-house. They are different articles of merchandise, and were separately invoiced. I find in all this record, nothing other than what I have stated, which remotely looks like evidence. If justice is to be administered according to law, then upon this ground this defendant ought t'o have a new trial, and we think the presiding Judge erred in not granting it.
[4.] The next exception is of like character with the one last reviewed, in this, that it grows out of a refusal of the Court to order a new trial, because the verdict was' contrary to evidence. The presiding Judge instructed the Jury, that if they believed, 'that by the contract between the parties, the defendant was to have 90 days within which to pay for the buggies, or return them; they ought find for him, for in that event (the action having been instituted before the expiration of that time) the plaintiff had no right of action. If this was the contract, the plaintiff clearly had no right of action. This was a special agency. Upon the evidence [441]*441we can put but one construction. It establishes a contract, by virtue of which, the defendant became the agent of the plaintiff without responsibility, for 90 days. An agency in some respects like a del credere commission. What is the evidence ? One witness testifies to the admission of the plaintiff, that the defendant was to have 90 days to pay for the goods. Another, that the plaintiff admitted, that the defendant was to have 90 days to dispose of, or return them. At the foot of the invoice of the goods, which was read in evidence, and in the hand-writing of the plaintiff, are the words and figures, “$527T2T3T at 90 days.” This sum of $627 23 corresponds with the amount of the invoice. At 90 days, is well understood to indicate, when thus appended to the bill of goods, that it was payable in 90 days. So also, at the foot of a receipt given by the plaintiff to the defendant, on the day the goods were delivered to him, for collateral securities for this debt, which was also read in evidence, is the following statement in the hand writing of the plaintiff: “ amount claimed and contracted, $527 22, at 90 days.” Which statement indicates the same thing. This is all the evidence. And all on one side. It came from witnesses unimpeached and documents unimpeachable. In the light of the Court’s instructions, it is difficult to imagine how the Jury could find that a credit of 90 days, was not given. It was given according to this record. No compensation of any kind is provided in the contract for the defendant. And no doubt the 90 days (within which he might turn over the money to advantage, or on account of which he might sell the goods for more than the invoice,) was in part, the consideration moving him to enter upon this agency. It was to him the essence of the contract. And as the verdict was contrary to the evidence, it must be set aside. It is objected that new trials are to be left to the sound discretion of the Court; particularly when asked upon the ground of an erroneous verdict. Because, being a witness to the trial, the presiding Judge is better qualified to decide whether substantial justice has been done ; therefore, say counsel, this Court ought not to interfere and control his discretion. These propositions are generally true. We have before so recognised them. We have in several instances said, that we would interpose only in extreme cases — in cases that are “ strong and unequivocal” — or of “ gross injustice ” — or where there “ was no ev[442]*442idence,” and I will now add, where the verdict is palpably contrary to the evidence. In Criminal cases we hold the rule of mro-interference more strictly than in Civil; because the Juries are in those cases judges of the law, as well as the facts. To use the language of this Court, in Jones vs. The State of Georgia, to authorize our interference in a criminal case, with the verdict, it must be “ a very naked, bald case as to the facts,” or a “ very clear case of error in Law.” 1 Kelly, 618. 2 Kelly, 153. 3 Kelly, 322. This is a civil case, and one that is “ strong and unequivocal.” A fit case for the application of the corrective power of this Court.
[5.] On the day that the goods were delivered to the defendant, the plaintiff received from him two notes, as collateral security, for the payment of the price of them. One of these notes, $135 in amount, was paid to him. The payment was after this suit was commenced, and subsequent to the service of a process of garnishment upon the plaintiff, sued out at the instance of other creditors of the defendant. Upon the motion for a new trial, it was claimed that the verdict was erroneous, in this; that this sum of $135 was not allowed as a credit to the defendant. The Court, upon this point, ruled, “that by the evidence this sum was held subject to summons of garnishment at the instance of Hall’s (the defendant’s) creditors. It is very certain that either Hall or his creditors have a right to that money. Both cannot have it, andPage, (the plaintiff,) cannot be delayed in his suit until the controversy between Hall and his creditors shallbe ended. The Jury, therefore, properly refused to abate Page’s damages for that sum.” The opinion of the Court thus expressed, is excepted to. We cannot assent to the doctrine, that collateral securities, pledged bona fide for the paymeut of a debt without any trust reserved, belongs to the pledger or his creditors. That is to say, that they belong to him or them, in any sense, which will defeat the pledgee’s right tQ them, or, which is the same thing, to money raised on them as security for his debt. That right is paramount to the rights of other creditors, and is good against the pledger himself, until the debt is paid. The pendency of a garnishment makes no difference. The pendency of this suit assumes that the debt is due. If this action can be sustained — if that assumption be true — upon the trial, it was competent for the Court to appropriate the money received on the collaterals, to the plaintiff, and of [443]*443course to credit tlie defendant. It ought to have been so appropriated. There was no necessity to await an issue on the garnishment. The Court, on the trial of this suit, had jurisdiction of the matter. It did, in fact, exercise that jurisdiction by determining that this money belonged to the defendant or his creditors. If it belonged to the defendant, it was pledged to pay this very debt. The creditors of the defendant have no rights in it, until the pledgee is paid. There could, therefore, be no controversy about.it, between the defendant and the creditors, until the debt of the plaintiff is paid. But the debt, by the record, is not paid. The very question is, shall it be now paid, to the extent of the money in hand ? The plaintiff is not delayed at all. He is expedited; for a judgment that this money be allowed as a credit to the defendant, is an instantaneous payment to him. An appropriation in this way to the plaintiff, would protect him on die trial of the garnishment. Whether appropriated or not, his rights in this money are paramount to those of the garnisheeing creditors. There is nothing in this record, it may be proper to remark, which impeaches the fairness of this pledge. It is not obnoxious to the Act of 1818, or any other law of the State. Upon the traverse of the plaintiff's answer to the garnishment, (he answering truly, as this record discloses the facts,) I apprehend that the garnisheeing creditors could not get ajudgment against the plaintiff, until they had first proven that his debt was paid. In that event, it is true, these collaterals and this money would be-iong to the defendant or his creditors. But only in that event.
We examine this doctrine a little. We say that the deposit of these notes in the hands of the plaintiff, as collateral security for this debt, is a pawn or fledge. A pledge is a bailment of personal property as security for some debt or engagement. Story on Bail. Sect. 286. Ordinarily, goods and chattels are the subject of pledges; but money, debts, negotiable instruments, choses in action, &c. may by the Common Law be delivered in pledge. 1 Vesey, 278. 9 Mod. R. 278. 3 Atk. 303. 10 Johns. R. 471, 475. 2 Taunt. R. 268. 13 Mass. 105. 15 Ibid, 389. 12 John. R. 146. Story, Bail. Sect. 290.
What are the rights of the pledgee in the thing pledged generally ? In virtue of the pawn, he acquires a special property in the thing, and is entitled to the exclusive possession of it, during the time, and for the objects for which it is pledged. Story on Bail. Sect. 303. Jones on Bail. 80. 2 Caine Cas. in Err. 202. 12 [444]*444John. R. 146. 1 Bulst. 29. Cro. Jac. 244. 2 Ld. Raym. 909, 916. 2 Kent, Com. 578, 585, 4 Edit. 1 Bell’s Com. Sect. 200, 4 Edit. 20 Pick. 399, 405. 12 Ibid, 316. The right of possession is exclusive — that is, it is good against all the world, for the purpose for which it is pledged — in this case, that purpose is the payment of a debt. For that purpose, the right to the thing is perfect. It yields to no other right which did not attach upon it, in the shape of a lien, prior pledge, or some claim existing prior to the pledge, and good in law. It is perfect against the pledger. For if he wrongfully get possession, a suit in favor of the pawnee will lie against him for the thing or for damages. He can bring an action for it, also against a stranger, or an action against the stranger for damages. 2 Saund. R. 47, noe. 8 Rich. 333. 2 Kent Com. 585, 4 Edit. Story on Bails, Sect. 303. 5 Binn. R. 457.
He has also a right to sell the pledge where there has been a default in the pledger; if there is no stipulated time -when the debt shail be paid, the pawnee may sell upon demand and notice. Story on Bail. Sect. 308. 2 Kent Com. 581, 582, 4 Edit. 2 Story’s Eq. Jurisp. Sect. 1031 to 1033. Holt’s N. P. R. 385. He may file a bill in Equity for foreclosure and sale, or upon demand and notice proceed to sell, ex mero motu, at his election. 1 Vesey, 278, 12 Jolms. R. 146. 2 Story’s Eq. Jurisp. Sects. 1031, 1033. 12 Wend. 61. 2 John. Ch. R. 62. Story’s Bails, Sect. 310. These are the principal rights of the pawnee. What, specially, are the rights of the pawnee of negotiable securities 1 He may recover and receive the money due thereon; he may bring suit upon them in his own name. Story on Bails, Sect. 321. 15 Mass. 534. 12 Jolm. 146. He may sell them, and if he sells to a Iona Jide purccaser, the latter acquires an absolute property, if he buys without notice. Story’s Bail. Sect, 322. 1 Story’s Eq. Jurisp. Sect. 434, 435. Story on Agency, Sects. 126, 127, 128, 129, 130. 13 Mass. 105. 15 Ibid, 389, 534. 12 John. R. 146. 1 Bos. & Pul. 143. Doug. 633. 3 Atk. 56. 1 Burrow, 452. 1 Bell’s Com. Sect. 412, 4 Edit. Matthews vs. Poythress, 4 Kel. 387.
It is not necessary to pursue this subject in detail. The paw-nee is entitled to receive the money due on his collateral securities, and to hold it against his pawner and all the world, until he is paid. When a pledge is made for the benefit of the pledgee and a third person, who is also a creditor, and the fund raised is insufficient to pay both, the pledgee, being a creditor in posses[445]*445sion, is entitled to preference. According to the idea of the Roman Law, “ In pari causa possessor potior haberi debet.” 12 Mass. 321. Story on Bail, Sect. 313. If this is true as to other creditors, when there is a stipulation in their behalf, a fortiori, it is true as to creditors generally, as to whom there is no stipulation. The rights of the holder of negotiable instruments as collateral securities, in them, were considered by this Court in the case of Bond vs. The Central Bank, 2 Kelly, 106, and in Gibson vs. Conner, 3 Kelly, 52, 53. In the latter case, we say : “ The transferor parts with, ahd the transferee acquires the legal title to the negotiable paper thus transferred — the latter may sue on it in his own name, and although the original debt is not extinguished, the creditor has the right to apply the proceeds of the securities, when realized, to its extinction — nay, he is bound to do it, and whatever he does realize on them is a payment pro tanto. If it be the right of the pledgee to apply money collected on the securities, it is the right of the pledger to consider money thus in hand ás a payment. If such'is the law of the case, he (the defendant) is entitled, the case being made, to have it so declared, and to have a credit on the original debt. This the Court ought to do, if for no other reason than to avoid litigation. As before stated, the Court had jurisdiction, in this case, of this subject matter, and we think it erred in not ruling that this money was by law to be appropriated to the plaintiff’s debt, and as a consequence, that the defendant was entitled to a credit for the amount of it.
Upon these grounds we remand the case.