#### Edward S. Jarvis, Administrator, &c., *versus*Daniel D. Rogers.

Of the rights and property of a pledgee in the thing pledged.

[The mere existence of a former debt due to the pledgee, does not authorize him to detain the pledge for that debt, when it has been put into his.hands for. another debt or contract, or particular trust or confidence, unless there be some just presumption that such was the intention of the parties. If certificates of stock, transferable by endorsement in blank and delivery be pledged, a *bond fide*purchaser, or subsequent pledgee, may hold them against the real owner. If the party who pledged the goods was not the owner of them, the pawnee may defend himself by showing that he has delivered over the goods to the real owner, unless the pledgor has a special property which he is entitled to assert against the owner; and if the pledgee holds the pledge merely as a pledge from the owner, the second pledgee may discharge himself from any obligation to the owner by delivering it up to his own pledgor at any time before an offer to redeem is made by the owner. Where one retains a chattel pledged for a debt, after the amount of the debt has been tendered, the owner can only recover in damages the value of the chattel after deducting the amount of the debt]

This was an action of *trover,*by the plaintiff, as administrator of the goods and estate of *Leonard Jarvis,*for. the value of one hundred and fifty thousand acres of *Mississippi*scrip; and it was tried before the *Chief Jus tice,*November term, 1817 ; and a verdict being returned for the plaintiff, the defendant moved for a new trial, under the following circumstances : —

It appeared in evidence that *Joseph Russell,*some time previous to his decease, which was in November, 1810, delivered to one *Marston,*a broker, a note of hand, for the sum of 1000 dollars, signed by the name of *Jeffrey &f Russell,*as a firm, of which the *351said *Russell*was a copartner; which note was payable to the said *Marston,*or order, and was endorsed by him, without recourse to him as endorser. The said *Russell*also delivered to said *Marston*fifteen *Georgia*scrip or certificates for a trust estate of one hundred and fifty thousand acres of land in the *New England Mississippi Land Company;*which certificates were signed by certain trustees, of whom the said *Leonard Jarvis*was one, purporting that the said *Jarvis*was entitled to the trust or benefit as proprietor of said quantity of land, and that his interest therein was transferable by endorsement of his name thereon; and the said certificates were so endorsed.

* *Marston,*at the request of *Russell,*sold the said note to the defendant, *Rogers,*and delivered him the said certificates, as collateral security, for which *Rogers*gave *Marston*his receipt.

After the death of *Russell, Marston*informed *Joseph Otis,*agent of *Sarah Russell,*executrix of the last will of the said *Joseph Russell,*of the said deposit or pledge ; and *Otis,*at the request of the said executrix, redeemed the said pledge, by giving to *Rogers*a promissory note, payable in six months with interest, signed by said *Otis,*and *Patrick Jeffrey,*the surviving partner of said *Russell;*at which time, *Rogers*delivered to *Otis*the former note of *Jeffrey Russell,*and gave *Otis*his receipt, February 8, 1811, purporting that if the said new note was not paid when due, the said certificates should be sold, and any surplus from the sale, beyond the sum due on the note, should be paid to *Otis.*At the same time, *Rogers’s*receipt to *Marston*was cancelled.

In November, 1811, the said note being unpaid, and the certificates not sold by *Rogers, Otis*tendered to him the amount due on the note, and demanded the certificates; which *Rogers*refused to deliver, in consequence of a suit by *Jarvis*then pending against him for the recovery of the said certificates; which suit was, at the March term of this Court, *A. D.*1816, decided against said *Jarvis,*for this reason, among others, that *Jarvis*had not tendered to *Rogers*the sum due on said note. [Vide 13 *Mass. Rep.*105.]

Immediately after the said suit was terminated, a tender was made by said *Jarvis*to *Rogers*of the sum due on the note, and the certificates were demanded, which *Rogers*refused to deliver, in consequence of the suit of *Otis*against him, founded on the said receipt, and still pending in this Court; whereupon the plaintiff commenced this action.

At the trial, the plaintiff represented to the jury, and proved by the testimony of *Benjamin Jarvis,*that said certificates were never the property of *Russell,*and were delivered to him only for safe *352keeping; and that they were redeemed in April, 1802, or shortly before, by *Russell,*at the * request of *Leonard Jarvis,*the plaintiff’s intestate, and with funds belonging to him, from the hands of one *Murdoch,*to whom they had been pledged by said *Jarvis ;*whereupon the jury gave their verdict for the plaintiff, for the full value of said scrip, without any deduction for the sum due on said note ; because it appeared that the estates of said *Jeffrey Russeñ,*although duly represented insolvent, had become able to pay the debts due from them.

It also appeared in evidence that the said *Leonard Jarvis,*deceased, in the year 1800, was indebted by sundry negotiable notes to one *James Greenleaf,*or order, and by him endorsed in blank, which were in the possession of *Russell,*for account of the said firm of *Jeffrey &f Russell,*and *John Coffin Jones,*who were indebted to the *Union*Bank in *Boston.*And the said *Jarvis,*by an absolute deed, dated in December, 1800, conveyed to the said *Union*Bank, in fee, at the request of the said *Jeffrey, Russell,*and *Jones,*a township of land in the District of *Maine.*And the said *Jeffrey, Russell,*and *Jones,*by their bond dated in the month of April following, engaged to said *Jarvis*that, if he paid the sum of 22,000 dollars, and all interest, to said bank in four years, the said bank should release to him the said lands.

It was also in evidence, by the deposition of the said *Jones,*produced by the plaintiff, that the above sum was the amount of said notes, and that said deed was intended as security for the payment thereof. No part of said notes was ever paid by *Jarvis,*and the land, which was held by said bank for the use of said *Jeffrey, Russell,*and *Jones,*and for their security, is not now, though supposed at the time to be, equal in value to the amount due on said notes which were in the hands of *Russell*at his decease. The land has since been sold for the benefit and by the order of the said *Jeffrey, Russell,*and *Jones.*

After the trial of the present action, and at the same term, the above action of *Joseph Otis*against *Rogers*was tried, and the said *Otis*produced to'the jury a paper, signed * by the said *Leonard Jarvis,*purporting that he had borrowed and received of said *Russell*the sum of 500 dollars, to be repaid on receiving from *Russell*his *Georgia*scrip, without mentioning the quantity thereof. This was dated October 23, 1802. *Otis*also produced a letter from said *Jarvis,*dated December 15, 1801, purporting that his scrip in the hands of said *Murdoch*was for one hundred and thirty thousand acres, which is the same scrip mentioned, in the deposition of *Benjamin Jarvis,*as having been redeemed by *Russell.*He also produced another letter from said *353*Jarvis*to *Russell,*dated July 5, 1804, which referred to said deed as security for the said notes endorsed by *Greenleaf,*as aforesaid, for account of said *Jeffrey, Russell,*and *Jones;*all which papers were not discovered by *Otis*until after the trial of the action of trover by *Jarvis*against *Rogers.*

Upon all which facts the said *Rogers*contended that, as said scrip was certainly pledged to *Russell*by *Leonard Jarvis,*and was by law a security to him, not only for the said sum of 500 dollars, but. also for the said notes of said *Jarvis,*neither of which had been paid, — the said *Sarah,*as executrix, had a lawful right to redeem said scrip from said *Rogers*in manner aforesaid ; and that the property therein was, by means of said transaction, invested in the said *Sarah,*or in the said *Otis,*so as to enable him to maintain his said action ; and he had accordingly recovered a verdict against said *Rogers*for the value of the scrip; thus exposing him, who is only a stakeholder, to pay twice for the same thing.

In *Jarvis’s*action, the said *Otis*assisted *Rogers*in means of defence, but was not a party on record. The estate of *Leonard Jarvis*is deeply insolvent, and so represented in the probate office.

In the action of *Otis*vs. *Rogers,*the jury were instructed that the plaintiff had no right in law to recover; because, the said *Russell*having no right to pledge the scrip for a debt of his own, the estate of *Jarvis*had a right to the value of the same from *Rogers,*there having been tendered to * him the amount of his demand against the said *Jeffrey 8f Russell,*for which the scrip was pledged to him; and that the said *Otis,*as representative of said *Russell,*could not recover of *Rogers,*for the purpose, of setting off any demand that *Russell’s*estate might have against the estate of *Jarvis.*The verdict was, therefore, contrary to the direction of the judge in matter of law. And in the action of *Jarvis, Adm.,*vs. *Rogers,*the judge instructed the jury, upon the evidence before stated, that the plaintiff had a right to recover the full value of the scrip, without any deduction on account of the money due on the note of said *Jeffrey &f Russell;*it being admitted that the estate of said *Jeffrey*was fully sufficient to pay said debt.

The cause was argued at the last March term in this county, by *G. Sullivan*for the plaintiff, and by *Hubbard*and *Ritchie*for the defendant; and now, at this term, the justices delivered their opinions *seriatim.*

Wilde, J.

It was decided, in a former action between these parties, that the defendant had a right to retain the certificates in question, so far as might be necessary to secure the debt due to him from the estate of *Joseph Russell;*to whom he had made advances *354on the credit of these certificates. (1) For, whatever defect there might have been in *Russell’s*title, the defendant, it appeared, was ignorant of it. His rights, therefore, ought not to have been prejudiced by any breach of trust on the part of *Russell.*The defendant having obtained the certificates fairly, and for a valuable consideration, from the lawful holder, who had an apparent title, his rights were not to be questioned by *Jarvis,*who, by endorsing the certificates in blank, had given them a transferable quality by delivery or cr, and had thus placed them upon the footing of negotiable paper.

But the plaintiff having, since the determination of the former action, tendered to the defendant the amount of his debt, he can no longer be considered as a holder for value ; nor can he defend himself in this action, except by showing that the executrix of *Russell,*or *Otis*in her right, has a * legal claim to the certificates, paramount to that of the plaintiff.

This action, therefore, to all substantial ends, may be considered as a suit between the plaintiff and *Otis,*and I shall accordingly thus consider it.

It is admitted that the certificates in question were once the property of *Leonard Jarvis,*the plaintiff’s intestate. The plaintiff is therefore entitled to recover their value, unless *Otis*can show a title derived from him.

*Otis,*in his own right, has no claim ; for it is not pretended that he has any title, except as agent of the executrix of *Russell.*Her title is founded on a supposed lien, arising from sundry dealings between her testator and *Jarvis,*the original owner of the certificates *;*and the case stands on the extent of this lien.

Courts, in modern times, have leaned much in favor of liens, considering them as founded on the principles of natural justice, and as tending to the security and encouragement of commerce. But hitherto the adjudged cases have not transcended the limits of equity and sound policy; and within those limits it is the duty of courts, in all cases, to confine themselves.

Liens generally arise either from express contracts, or from the usages and customs of trade, or from the manner of dealing between the parties. In this case, there is no lien, by express contract, beyond the note for 500 dollars; and as to that sum, the tender to the defendant, for the benefit of *Russell’s*estate, operates .as a full discharge. No agreement, constituting a lien, can be inferred from the manner of dealing between *Jarvis*and Russell, nor from any usages of trade. There is no usage of trade appli *355cable to the transactions between the parties ; and it is clear, from the evidence, that the notes given to *Jeffrey fy Russell,*which after-wards came into the possession of the bank, were never intended to be secured by the deposit of the certificates, but by a conveyance of real estate.

* This conveyance was made in 1800, nearly two years before the certificates came to the hands of *Russell,*and was then deemed ample security. The conveyance being absolute, it may be doubted whether the grantees would not be held to account for the value of the land at the time of the grant, or at the end of the four years, within which time *Jarvis*had a right to redeem or repurchase the land, by payment of the notes.

But, be this as it may, it is certain that the parties never looked to the certificates, for security of the notes transferred to the bank. For it appears by a paper produced by *Otis,*in the trial of his action, that it was agreed by the parties that the certificates should be given up, on the payment of the note for 500 dollars. This agreement must be considered as limiting *Russell’s*claim on the deposit, and negatives any implied agreement, between the parties, that the certificates should remain as security for the other notes. The parties were competent to agree upon the extent of the lien upon the deposit; and as they did limit that extent by an express agreement, it is not easy to perceive on what ground it is that this lien can be extended.

The principle, that a lien cannot be extended beyond the plain meaning and intention of the parties, seems to be well settled in the case of *Green & Al.*vs. *Farmer & Al.*4 *Burr.*2214. That was a case of certain dyers, who set up a lien on certain goods by them dyed, and insisted on the right to retain them until they were paid, not only for dyeing the goods in dispute, but also for other goods dyed and returned at a prior time. But the court held that the lien could not be thus extended; on the ground, that it was to be inferred, from the manner of dealing between the parties, that the dyers relied on the personal credit of their employers. The same principle is recognized in the case of *Walker & Al.*vs. *Birch & Al.*6 *D. & E.*258, and in that of *Rushforth & Al.*vs. *Hadfield & Al.*7 *East,*224. In the case of *Walker & Al.*vs. *Birch & Al.,*it was said that the lien which a factor has on the goods of his principal, for his * general balance of accounts, arises upon an agreement which the law implies; that such lien, therefore, may be controlled by an express stipulation; and that where goods are deposited for a particular purpose, they are not subject to the general rule respecting liens. *Russell,*therefore, if considered as a factor, had no lien to the extent contended for. *356nor could such a lien be supported, if the express stipulation were laid aside.

Before the case of *Kruger & Al.*vs. *Wilcocks & Al.,*(2) it was doubted whether a factor had a lien on the property of his principal, coming to his hands, for his general balance. The law, however, is now well settled that he has. But this lien is confined to his general account as factor, and does not extend to debts contracted previous to his *agency.—Houghton*vs. *Matthews.*(3) — Now, it is clear that *Russell*was not the general factor of *Jarvis.*The only transaction, in which he can be considered as acting in the charicter of factor, took place in April, 1802, long after the notes to *Jeffrey &f Russell*had been given. Those notes, therefore, could not constitute a lien on the certificates, by the general rule of liens n respect to factors.

But, whatever lien *Russell*had, considered as a factor, it was ex «uigivshed by his breach of trust, in tortiously pawning the certificates, id secure a debt of his own, without notice that he acted as fiictor, tine' of the lien he claimed. For it is clearly settled in all the books, mat a factor has no right to pledge the property of his principal; nor can such tortious pledging preclude the principal from recovening >_ of the pawnee, without any tender of the sum for which it was pawned. (4) (a)

In the case oí *Neusotn*vs. *Thornton,*the court went so far as to say that even the endorsement of a bill of lading would not give validity to such a pledge. In the case of *Daubigny fy Al.*vs. *Duval & Al.,*(5) an attempt was made by counsel to qualify the general position, that a lien is a personal right, and cannot be transferred to another, by insisting that a person would lose his lien only by parting with * the possession to the owner. But the court would not allow the rule to be thus qualified ; and Judge *Duller*pointedly observes that the qualification attempted to be ingrafted on the rule, would destroy the rule itself. A similar doctrine he lays down, in his masteily opinion delivered before the House of Lords, in the case of *Lickbarrow*vs. *Mason,*(6) that “liens at law exist only in cases where the j'arty entitled to them has the possession of the goods ; and if he once part with the possession after the lien attaches, the lien is gone.” There is not, therefore, in my opinion, the slightest ground of defence, in this *357case, on the principles of law applicable to liens, if *Russell*is to be considered in the character of a factor.

Nor is his title better as pawnee. It has been argued that a pawnee has a right to retain the pledge, not only as security for the money lent upon it, but also for any other debt which may be due to him; and this argument has been supposed to derive support from the principles of the civil law. It is true that some passages ;n the books seem to countenance such an argument; but those passages, I think, may be understood to apply only to debts con tracted after the pawnee’s possession of the pawn. Such debts may be presumed to have been contracted on the credit of the pawn.

If, however, the principle of the *Roman*law cannot be thus qualified, it is enough to say that it is opposed to the principles of the common law; and, as it seems to me, to the plain principles of justice and fair dealing. For, if a debtor obtain of his creditor a loan of money on pledge, upon an express agreement that the pledge shall be restored on the repayment of the loan, the creditor cannot retain the pledge, as security for a prior debt, without violating the principles of good faith.

Parties having a legal capacity to contract have a right to make such stipulations between themselves as they see fit, provided they do not contravene the law; and such stipulations are to be faithfully observed by the contracting * parties. The law, in such case, will never make any new contract by implication. Now, I consider the agreement between *Jarvis*and *Russell*to have been proved by indisputable evidence. It was an agreement, on the part of Jarvis, to pay the note for 500 dollars on the delivery of the certificates; and on the part of Russell, to deliver the certificates on payment of the note. They could have no intention that these certificates were to be retained as security for the notes payable at the bank ; for such a supposition is repugnant to the terms of the agreement.

But it has been argued, that *Russell’s*executrix is entitled to the possession of the certificates on equitable grounds; that their value may be set off against the debt due from the estate of *Jarvis.*I feel, however, constrained to say that, to my mind, there is neither equity nor law in such a claim. If the executrix has no legal lien on the certificates, it seems to me strange to say that she is entitled to possession.. What claim of preference have the heirs of *Russell,*or his executrix, over the other creditors of *Jarvis*? By the policy of the statute for the distribution of insolvent estates, (7) all the *358creditors are placed on a footing of equality. A claim of preference, therefore, by one creditor over another, ought to be regulated by the strictest principles of law.

Furthermore, if the executrix of *Russell*should obtain possession of the certificates, their value could not be set off against a debt due to her, as executrix, from the estate of *Jarvis.*The statutes for setting off mutual debts against each other are not applicable to goods, or other specific property, wrongfully detained. There can be no set-off in trover unless the defendant has a lien on the goods. (8) Besides, an action of trover would not lie against the executrix, for a conversion by her testator. And in an action against the executrix, for a conversion by her, or in an action against *Otis,*it cannot be contended that they could set off a debt due to the testator.

* In regard to the damages, the defendant has, I think, a lien on the certificates, for the amount of his demand against the estate of *Russell;*which sum has been tendered by the plaintiff, and ought therefore to have been deducted from the estimated value of the certificates. From the evidence, also, *Jarvis’s*original title to the full amount of the certificates seems doubtful. A new trial, therefore, in my opinion, ought to be granted; unless the parties shall be able to agree on the amount of damages.

Putnam, J.

A recurrence to the facts, in the order of time in which they took place, will have a tendency to ascertain the rights of the parties. As early as the year 1800, it appears that *Russell*held *Jarvis’s*notes to *Greenleaf,*endorsed for the use of *Jeffrey, Russell,*and *Jones,*amounting to 22,000 dollars. That company, being indebted to the *Union*Bank, placed those notes there; and in December, 1800, *Jarvis,*at their request, made a conveyance to the bank of some land in the District of *Maine*— which, although absolute in form, was intended as collateral security for those notes. Nineteen years ago, then, it appears that *Jarvis*was greatly indebted to *Russell;*and it must be recollected that the debt has never been paid. In April, 1802, *Jarvis*furnished *Russell*with money to redeem the scrip for 130,000 acres of *Georgia*land, which *Jarvis*had pledged to *Murdoch.*That property was negotiable, and transferable by delivery, as the paper had been endorsed in blank by *Jarvis.*It was suffered to remain in *Russell’s*hands, as *B. Jarvis*testified, only for safe keeping. But it must not be forgotten, however, that *Russell*was then the holder of the *Greenleaf*notes; and that circumstance might have been some inducement to the original deposit of the scrip in the hands of *Russell.*It does not appear, in leed *359that any contract was made by them, originally, that the scrip should be held as a security for those notes; but that was the lawful advantage arising to *Russell*from the deposit. For if *Jarvis*had sued *Russell*for the scrip, *Russell*could have sued *Jarvis*for the payment of the *Greenleaf*notes ; * and it was not material that one claim could not be set off, in form, against the other; as the executions might have been contemporaneously enforced by one party against the other.

To every legal as well as equitable purpose, *Russell*might have availed himself of the scrip, as a security for the *Greenleaf*notes. We have seen that *Jarvis*could not have prevented it, if he should have desired so to do. Nor could his creditors have been in a better situation. If they had sued *Russell*as the trustee of *Jarvis,*the court would not have compelled *Russell*to have delivered the scrip, without payment of the notes. Why should the administrator of *Jarvis*be permitted to- litigate more advantageously ? *(a)*

But to proceed in the order of events: In 1802, *Jarvis*received of *Russell*500 dollars, to be repaid on receiving the scrip. This appears from *Jarvis’s*receipt of October 23, 1802. It appears that *Jarvis*never has paid the *Greenleaf*notes, nor the 500 dollars; that *Russell,*embarrassed probably by the failure of *Jarvis*to fulfil his engagements, pledged the scrip to the defendant in November, 1810, for 1000 dollars. The scrip was delivered to the defendant endorsed; so that, by operation of law, the legal right or power over the property vested in the defendant, *Rogers.*He became accountable to *Russell*to reconvey it, when the 1000 dollars should be paid, with interest. That was a contract, however, with which *Jarvis*had no privity; for *Rogers*then had the legal title to the scrip; and there is no suggestion that the transfer of *Russell*to *Rogers*was not fair, or that *Rogers*had any knowledge that *Jarvis*had any claim whatsoever upon *Russell*for a redelivery.

Thus the matter remained until after the death of *Russell.*Then his executrix, as she lawfully might, offered to pay *Rogers*the money which was due from her deceased husband ; and she did, in effect, pay it, by the note of her agent *Otis. If*the money had been paid by *Otis,*instead * of his giving a note for the amount, and thereupon the scrip had been delivered for the use of the executrix, is it not manifest that the property would have passed or lodged where *Jarvis*originally intended that it should, *viz.,*in the hands of *Russell,*or of his representative? *Rogers*would have been out of the controversy, and *Jarvis*would have *360been compelled to perform his engagements to the estate of *Russell*before he could have repossessed himself of the scrip. Now, the transaction which did, in fact, take place between the agent of the executrix of *Russell*and the defendant *Rogers,*admitting his solvency, (which no one doubts,) gave to the estate of *Russell*the beneficial interest in the scrip. For the defendant has rendered himself accountable, upon his contract with the agent, to transfer it upon the payment of 'his note. Why, then, should the administrator of *Jarvis*be permitted to defeat so just an arrangement?

It has been contended by the plaintiff that the conveyance of the land in *Maine*was a payment of the *Greenleaf*notes, so that *Jarvis*owed no debt on that account; that *Jarvis*never had any right of redemption ; and that it could not be construed a mortgage. It was, in fact, an absolute grant, and not a deed with defeasance. The consideration, or rather the value of the land, was secured to *Jarvis*by means of the bond of *Jeffrey, Russell,*and *Jones.*If *Jarvis*should pay the *Greenleaf*notes in four years, they undertook that the bank should reconvey to *Jarvis.*If not, then, by the operation of law, the value, to be ascertained upon a sale, should be applied towards the payment of the notes. Unfortunately, after the trial was had, the land proved insufficient to pay the notes. The intent of the parties, as indicated by the deed and the bond, and especially by the letter of *Jarvis*of July, 1804, manifestly was, that the land should be a security, and not a payment of the *Greenleaf*notes. And although technically it was not a mortgage, yet *Jarvis*had, by the bond of *Jeffrey, Russell,*and *Jones,*a convenient time for the redemption. The * net price for which the land sold is to be credited to *Jarvis,*towards the payment of the *Greenleaf*notes. For the balance, the estate is still indebted.

Then it is said chat *Russell*was only the bailee for safe keeping, nr at most pawnee; and that a bailee or pawnee cannot, by law, assign the property deposited or pledged. For this position we are referred to the case of *Sir John Hartop*vs. *Alderman Hoar & Al. Sir.*1187. This case is much better reported in 3 *Atk.*44. The case was thus: The plaintiff deposited a pair of diamond ear-rings, and other jewels, with one *Seamer,*for safe keeping, sealed up in a bag with the plaintiff’s seal. *Seamer*broke open the bag, and pawned the jewels to the defendants, for a debt due from him to them. It was held that the plaintiff should recover; for *Seamer*had not any property, general or special, in the jewels. He came to the possession of them by trespass, or by felony ; and the right of the plaintiff was not devested, as it would have been by a *bond fde*purchase of the defendants in their shop in *London,*which war *361an open market — the court considering that the custom extended only to sales, and not to pawns made there.

But there is a great difference between this case and the case at bar. Neither the title nor the possession of the jewels was conveyed to *Seamer.*They were as goods in a chest locked up, whereof the owner kept the key. But the scrip, in the case before us, was transferable by delivery, like a negotiable note or bill of exchange endorsed, or like a bill payable to bearer. The title was vested in *Russell,*and he had a legal power to transfer it, being accountable only to *Jarvis.*

The case of *Collins*vs. *Martin & Al.*(9) is very strong to this point. There, *Collins*had deposited a bill of exchange, endorsed in blank, with one *Nightingale,*a banker, for collection. *Nightingale*pledged the bill, to raise money for himself, and became bankrupt. *Martin fy Al.*took it fairly in the course of their business, and they were adjudged to be the lawful owners of the property. In this case, there * was a breach of trust by the party to whom the plaintiff delivered the bill. But the sound rule of law was applied, that, where one of two innocent parties must suffer by the fraud of a third person, the loss ought to fall on him who reposed confidence. In the case at bar, the confidence was placed in *Russell*by *Jarvis;*and if it was abused, the loss should fall on *Jarvis,*and not on an innocent holder.

It is not perceived, however, that *Russell*had any ill intent when he pledged this property. He was probably reduced to that necessity by the neglect of *Jarvis*to fulfil his engagement; and although he transferred the legal title to the defendant, his obvious meaning was, to hold a power over the stock, which would procure a reconveyance or an equivalent. For that he relied upon the contract of the defendant,.to the end that, upon an adjustment of their mutual claims, he, *Russell,*should be in a situation to account with *Jarvis*for the property deposited. If the defendant had misappropriated the scrip, or had been unable to pay for it, *Russell*would have sustained the loss. It appears, however, that *Rogers*has been able, and is willing, to do what he ought, as soon as that can be judicially made known.

This action supposes that the stock belonged to *Jarvis*at his decease. But it has been already observed that the legal title was transferred by him to *Russell.*It has not been reconveyed, unless by the operation of the law, arising from the transaction between *Russell*and *Rogers.*Can the contract of *Rogers*to reconvey estate to *Russell,*or to *Otis,*be considered as revesting- the- title in *Jarvis**362or his assigns? That could not have been originally intended by *Russell;*for the name of *Jarvis*is not mentioned in that contract.

If the plaintiff should recover in this action, the defendant must be excused from performing his contraer with *Otis;*for no one will contend that he is to answer to both. That contract must be considered as vacated; or, by some sort of fiction or commutation, as enuring to the use of those who were neither parties nor privies to it. The judgment * would be against the defendant, and could not be met by any just demands which the estate of *Russell*may have against the estate of *Jarvis.*Those must be satisfied with a decree of distribution under a commission of insolvency. And yet it must be obvious that the representatives of those estates are the parties in interest. The defendant is a mere stakeholder.

But if the plaintiff is not permitted to interfere in the arrangements which have been made between. *Russell*and the defendant, the property will be restored ; and the mutual claims of the estates of *Russell*and *Jarvis*will be settled according to the legal results arising out of the original trust or deposit. When those gentlemen were living, no attempt was made to frustrate such an appropriation of the property. Can it be supposed that *Russell*would have suffered his demands against *Jarvis*to have slumbered for ten years, if he had not believed that he was secure, in virtue of this deposit ? —■ or that *Jarvis*would not have enforced his claim to the property, if he could fairly have done it without first satisfying *Russell’s*claims against him ?

Upon the whole matter, my opinion is, that the title to this stock was transferred by *Jarvis*to *Russell,*and by the latter to the defendant, *Rogers; that it*has not been revested in *Ja"vis;*and that the verdict, which was for the plaintiff, ought to be set aside, and the plaintiff become nonsuit.

And in the case of *Otis*vs. *Rogers,*my opinion is, that the de fendant was by law obliged to transfer the stock, according to his contract; and that judgment, in that case, should be entered according to the verdict.

Jackson, J.

I agree with my brother *Wilde*as to the two objections which he has mentioned to the verdict; first, that the jury ought to have deducted the amount of the debt due to the defendant, which the plaintiff had tendered him; and secondly, ■that the quantity of the land, comprised in the certificates, which ¡belonged to Mr. *Jarvis,*is left so uncertain upon the evidence that there ought to be a new trial, to ascertain the quantity. This question does * not appear to have been considered *363by the jury, and seems to have escaped the notice of the counsel, on the former trial.

But, independently of these grounds, I have come to the conclusion that the verdict ought to be set aside, and that the plaintiff is not entitled to recover any thing in this action.

The defendant has no interest in this question, excepting, perhaps, to the amount of the bill of costs. He is ready to deliver the certificates either to the plaintiff *Jarvis,*or to *Otis,*the plaintiff in the other action, as the Court shall award, upon receiving the debt due to him; and each of those other parties admits his right to that extent. This is, therefore, a question between *Jarvis*and *Otis;*and we are now to decide which of them is entitled to the possession of these certificates. I consider it in the same light as if Sara/ *Russell,*the executrix, were a party in that other action, instead of *Otis;*because it is stated that *Otis*was her agent, and redeemed the stock, originally, at her request; and also because this view of the case is most favorable to *Jarvis.*If *Otis*is not her agent, he must be considered as the assignee, or purchaser, for a valuable consideration; and, considering the nature of the certificates, which were transferable by delivery after the endorsement, the title of *Otis,*as a purchaser, would be superior to that of *Jarvis*— unless it could be shown that he was informed, at the time of his purchase, of the rights of *Jarvis,*and of the defeasible title of *Russell.*

Considering it, then, as a dispute between the representatives of *Jarvis*and the representatives of *Russell,*it is obvious that neither party would have much interest in the question, if both of the estates were solvent. But as the estate of *Jarvis*is deeply insolvent, and as the executrix of *Russell*has large claims against *Jarvis’s*estate, she is desirous to hold these certificates, to be used by way of set-off, in order to prevent or diminish the loss which she would otherwise sustain by reason of that insolvency. It appears to me reasonable and just that these mutual demands * should thus compensate each other, if it can be effected without violating the rules of law.

Admitting that *Russell,*when he agreed to hold these certificates as a security or pledge, did not stipulate, nor expect, that they should be held for any thing more than the 500 dollars, yet it is reasonable to suppose that, when his security for the other larger sum was found to be insufficient, he looked to this as a fund out of which he might indemnify himself; and that, relying on this, he took no other measures, whilst he and *Jarvis*were living, to secure himself from loss on account of that large debt. And whether he so considered it or not, these certificates might have been applied 1o the discharge of that debt, if the matter had been settled in the *364lifetime of the parties. If *Jarvis,*while living, had tendered to *Russell*the 500 dollars, and demanded the certificates, the latter might have refused to deliver them until his other debt was also paid. It is true that, upon such a refusal, he would have been liab e, in an action of trover, to account for the full value, deducting only the 500 dollars. But he could, at the same time, have recovered against *Jarvis*the amount due on the other notes; and the executions on these two judgments might have been mutually set off in the hands of the officer, and the balance only would have been received or paid by *Jarvis.*

This mode of set-off was provided by the provincial act of 6 *Geo.*3, c. 2, and the same provision is introduced in the late statute of 1810, c. 84. Our law pays no regard, in this case, to the origin or nature of the demands. Whether they arise *ex malefició*or *ex contractu,*they are reduced to the same level by the respective judgments, and will mutually compensate each other. This certainly approaches nearer to the principles of natural equity than the common-law rule, which refuses to allow a set-off in any case ; or even the more liberal provision of the *English*statutes on this subject Our statute, before referred to, carries this equitable • principle as far as it was carried by the civil law; * and in some cases, perhaps, further than the rule ofcompen sation, strictly so called, was carried by the *Roman*code; for by that code there were some cases, as of a deposit, where good faith required the restoration of the specific thing deposited, without deduction on account of any cross demand. (10) Possibly, even in some of those cases, the same result might be effected by way of retention. (11) But, however that might be, there never was any doubt in the case of a pledge ; and the pawnee might always retain it, not only for the sum for which it was specifically pledged, but f >r all other moneys due to him on any account whatever. (12)

Thus stood the rights of the parties whilst they were both living. When *Jarvis*died insolvent, the equitable right of *Russell*to set off these mutual demands became still stronger. Every claim, on both sides, that could by law survive for or against the estate of a person deceased, was then to be brought into an account current, and the balance, only, was due from one to the other. This was decided in the case of *M’Donald*vs. *Webster.*(13) The maxim of the civil law is, *Frustra jpetis, quad max es restiturus.*I should *365say *injusté petis,*when you owe an equal sum, which yet by the course of law you cannot be compelled to restore. This would be the case, if the administrator of an insolvent estate could recover his whole demand, and leave his debtor to recover back a small dividend only, upon what might be due to him from that same estate.

As *Russell*thus had, at one time, the right, and the power, to retain these certificates until all his just demands against *Jarvis*were satisfied, the next question is, whether he afterwards relinquished, or in any manner lost, that right. It is clear that he never intentionally relinquished it; he never restored the certificates, nor agreed to restore them, to *Jarvis,*nor to his administrator. If, then, he lost his right to hold the certificates, it must have been the necessary legal consequence of some event not under his control, or of some act of his which was not intended to have that effect.

* The death of *Russell*certainly produced no change in this respect. His executrix liad the same rights, so far as *Jarvis*was concerned, that *Russell*himself had when living. The only other fact, from which such a consequence could be deduced, is the transfer of the certificates made by *Russell*to *Rogers,*the present defendant; and it was argued that, by thus parting with the possession, he lost his lien, and his legal property in the goods, in like manner as a factor is said to lose his lien by pledging the goods for his own debt. This rule, as to factors, is taken from the law merchant, by which the factor is considered as merely the attorney of his principal; and upon that ground the case of *Kinder Of & Al.*vs. *Shaw & Al.*was decided in this Court. (14) But, in the case of goods which are pawned or mortgaged, the pawnee or mortgagee has a special property in them. (15) *(a)*

In the case of *Ratcliffe*vs. *Davis,*the pawnee had delivered the goods to a stranger for safe keeping, and it was not pretended that his lien was thereby destroyed ; and the pawnee having died, a tender was made to his executrix, and thereupon an action of trover was maintained against the bailee or depositary. In *More*vs. *Con-ham,*it was decided that the pawnee has an interest and special property in the pawn, which he may assign over; and if the assignee detains it, after payment by the owner, he is liable to an action of detinue. In *Demainbray*vs. *Metcalfe & Al.,*(16) the *366plaintiff had pawned some jewels to the defendant *Knight*for £110, to be redeemed in twelve months; and *Knight,*in two days after-wards, pawned them to the defendant *Metcalfe*for £200. The plaintiff was not allowed to redeem, without paying all that had been loaned by *Metcalfe.*

From these cases, it appears that the pawnee may deliver the goods to a stranger without consideration, or he may sell and assign all his interest absolutely, or he may assign it conditionally by way of pawn, — without, in either case, destroying the original lien, or giving to the owner a right to reclaim them on any other or better terms than he could * have done before such delivery or assignment. And this is also the rule of the civil law. (17) It appears, therefore, that all the right and interest which *Russell*ever had in the certificates in question remained, as between him and *Jarvis,*unimpaired by the assignment made by *Russell*to Rogers; and this was the state of things when *Russell*died.

After his death, his executrix, by her agent, redeemed the certificates from the hands of *Rogers,*he making no objection to it; and they were then pledged to him again, with a new note, for the same sum. The executrix, after the redemption, still remained the pawnee of *Jarvis,*if he was then living, and held the certificates upon the same terms on which her testator had held them. Of course, her subsequent pawning of the certificates to *Rogers*did not divest her lien or property in them. When, therefore, she caused the tender to be made to *Rogers*in November, 1815, her right to the certificates, or that of her agent, *Otis,*became absolute and perfect. It was decided, in the case of *Ratcliffe*vs. *Davis,*before cited, that, on the tender by the pawner, the property of the goods pawned was instantly revested in him. The lien of the pawnee is, *ipso facto,*discharged by the tender. *Rogers*ought, then, to have delivered the certificates to *Otis,*and he would have been protected against any claim of *Jarvis.*The latter made no tender until four months afterwards ; and it could not be known in November, 1815, whether he would ever make any tender. At that time there was *a perfect right*in *Otis*to demand and receive the certificates, and *a perfect obligation*on the part of *Rogers*to deliver them to him. Upon this right the action of *Otis*was founded ; and it appears to me that an action so commenced cannot be barred by the subsequent transactions between *Jarvis*and *Rogers. Is, qui actionem, habet ad rem recuperandam, ipsam rem habere videlur.*(18) If *Rogers*hid deliv *367ered the certificates to *Otis*upon that demand, this action by *Jarvis*could not have been maintained ; and it is a sound maxim of law, that it shall not be in the power of any man, by his election or his * voluntary act, to vary the rights of two contending parties. I consider the refusal of *Rogers*to redeliver the certificates to *Otis*as a voluntary act; because he might lawfully and safely have delivered them, and it was his duty so to do. His refusal, therefore, ought not to prejudice *Otis.*It is true that *Rogers*has acted with honesty and fairness in the transaction ; and he seems to have been, at all times, ready to deliver the certificates, as soon as he could be informed authoritatively to which party they belonged. But the motives of his conduct have nothing to do with its effects on the other parties. It is the same thing to *Otis,*whether *Rogers*was influenced, in refusing to deliver the certificates to him in November, 1815, by mere caprice, or by collusion with *Jarvis,*or by an honest doubt as to his duty in that respect. His ignorance, or mistake, of the law, ought not to prejudice *Otis.*

Upon these grounds, I am satisfied that *Otis*ought to recover in his aclion against *Rogers;*and that *Jarvis*ought not to recover. If that should be the judgment of the Court, Mrs. *Russell,*the executrix, will receive the certificates; and *Jarvis*may then, in an action against her, recover the value of them, deducting whatever the estate which he represents may owe to the estate of *Russell*— according to the principle recognized in the case before cited of *M’Donald*vs. *Webster.*

I began with stating my opinion, that it was just and reasonable that the executrix of *Russell’s*will should have these certificates, to account for them to *Jarvis,*the administrator ; so that she might set off her demands, as executrix, against the estate of *Jarvis.*But that is not the ground on which I place her title to the certificates. I have endeavored to show that *Otis,*her agent, had an indisputable legal title to the certificates, when he commenced his action against *Rogers;*and that nothing has since occurred to divest or alter that right. This legal title in *Otis*is so satisfactorily proved to my mind, that I could not resist it, although I might regret the consequences, if my opinion, as to the equity of the case, were the reverse of what it is.

* Another question has presented itself in this case; which is, whether the right of redeeming these certificates survived to the administrator of *Jarvis.*If the contract between *Russell*and *Jarvis*had been that of a simple pawn, this question would have been very material, and in my mind decisive in the case. But it was not a mere pawn. *Jarvis*gave his note to *Russell*for the 500 dollars lent to him, which he promised to repay *368on receiving the certificates. It was, therefore, in the power of *Russell*to demand his money at any time, on offering to deliver the certificates; and the latter were held only by way of mortgage, or collateral security for the note. Considering it in this light, there could not be a forfeiture of the certificates, until a demand by *Russell*of payment of the 500 dollars. As no such demand has been made, the right which *Jarvis*had to reclaim the certificates remains to his administrator. On this ground, therefore, if there had been no other question in the case, my opinion would have been for the plaintiff. But for the reasons before given, I think that neither *Jarvis*nor his administrator could recover against the present defendant.

Thatcher, J.,

observed that this case was fully considered at a conference of all the judges at the last March term, in their chambers, and that it had lain in his mind that the opinion of a majority the Court was to be delivered by the chief justice at the law term for the southern circuit, in the succeeding July. Since his arrival in town, at the commencement of the present term, he had learned that judgment in the action was not yet entered, and that his brethren proposed to deliver their respective opinions, with the reasoning on which those opinions had been formed. The cause had not been the subject of consideration with his honor since the last term in this place ; and, since his arrival here, his time had been fully occupied by the current business of the Court. He should now, therefore, only say that, having read the minutes of the opinion prepared by the chief justice, and now to be delivered, he fully * concurred in its result, that the plaintiff was entitled to judgment.

Parker, C. J.

The rights of three parties are in question before the Court, in the case now under consideration.

The administrator of the estate of *Leonard Jarvis*is one party . *Joseph Otis,*or rather Mrs. *Russell,*as she is executrix of the last will of *Joseph Russell,*is another; and Mr. *Rogers,*the defendant, is the third. The two former are making adverse claims upon the defendant, for the value of the property in his hands; each of them having tendered to him the amount of the debt and interest, as a security for which he has claimed to hold the property; and neither of them can recover of him without deducting, from the value, that amount; so that he may be considered as having no interest in the decision, and as being a mere stakeholder. For, whichever of the two contending parties recovers, the other must necessarily fail in his suit; unless it appears that part of the property in the defendant’s hands belongs to one, and part to the other, in which case he may be accountable to both, according to their respective interests *369We are, then, to consider the claims of the two estates of *Jarvis*and of *Russell*to the property which is the subject of the suit.

And, first, it is admitted, or, if not admitted, cannot well be denied, that the property was originally in *Leonard Jarvis.*It consists of what has been commonly called *Georgia scrip,*being certificates of ownership of *Georgia*land. It was issued in the name of *Leonard Jarvis,*and it is not disputed that it originally belonged to him. If *Russell,*therefore, had any property, it must be derived from *Jarvis.*It was found in the possession of *Russell,*with the name of *Jarvis*endorsed in blank upon each certificate. Now, as this paper was made transferable, by a vote of the company by whose authority it was issued, of which *Jarvis*was one, and he having assented to the vote, and having endorsed his name in conformity to this vote, the possession by *Russell,*under such circumstances, is *prima facie*evidence of property in him.

*But this evidence is fully rebutted by the testimony of *Benjamin Jarvis,*which is wholly uncontradicted ; and by this testimony it appears that *Russell*received the scrip, without having paid any thing for it, or pretending to claim it as his own; having acted as the friend and agent of *Jarvis,*in redeeming it from the hands of one *Murdoch,*to whom it had been pledged by *Jarvis,*and who also furnished the funds by which it was redeemed. *Russell,*therefore, acquired no title to the property by this act, but became the depositary for safe keeping, having no right to dispose of it, or to use it for any purpose of his own. This transaction took place in April, 1802; and is to be accounted for from the circumstance, that *Jarvis*at that time lived in a remote part of the state, and that the property was then of no actual value, although considerable expectations were indulged of a future value.

At the trial these facts were not disputed; but the representative of *Russell*claimed a right to have possession of the property on the ground of a lien supposed to exist, in relation to a large debt alleged to be due from the estate of *Jarvis to*that of *Russell.*The facts respecting this claim appear, from the report, to be as follows: —. Before the scrip came into the hands of *Russell, viz.,*in 1800, *Jarvis*had given his negotiable promissory notes, to a large amount, to one *James Greenleaf;*probably for the consideration of the *Georgia*land which he had purchased. *Greenleaf,*being indebted to the *Union*Bank, and having *Russell, Patrick Jeffrey,*and *John C. Jones,*for his sureties, to secure them, endorsed *Jarvis’s*notes ; and *Jarvis,*to secure the bank, conveyed to it a township of land in the District of *Maine.*This conveyance was absolute in form; but the land being supposed to be of more value than the sum due, *Russell, Jeffrey,*and *Jones,*gave *Jarvis*a bond, the condition of which was, *370that if lie paid the sum due to the bank in four years, the land should be reconveyed to him. The debt was not paid by *Jarvis.*and the land was, long after the expiration of the four years, sold by the bank for a sum much less *than the debt, and the proceeds credited to *Russell, Jeffrey,*and *Jones.*

It was contended that *Russell*had a right to hold the certificates, as a security for the debt of *Jarvis;*and this was all the foundation upon which the right was said to depend, when the action was tried. I was of opinion that this constituted no lien ; for I thought a lien upon the property of another could be created only by some contract, express or implied; unless in the few instances where it is created, by law, in favor of some particular branches of business. I saw in the facts proved no evidence of such contract; but, on the contrary, much to disprove it. For these certificates were not placed in the hands of *Russell,*to secure the debt.. On the contrary, they did not come into his hands until more than a year after the debt existed; and he received them merely for safe keeping for *Jarvis.*Besides, another security, thought to be adequate at the time, was taken, which was all that was relied upon; and no intimation appears to have been made, either by *Russell*or *Jarvis,*in the correspondence which took place between them, of any design, entertained by either, that these certificates were to be looked to as security.

I remain still of the same opinion; for I have neither heard nor seen any judicial decision tending to prove that, if a creditor accidentally gets possession of his debtor’s goods, or if his debtor commits them to him on a particular trust or confidence, the creditor has a right to retain them as security for his debt, *(a)***On the contrary, I apprehend any other creditor may attach them, if they can be seized by an officer.; or the creditor may be charged as trustee, if they cannot be come at to be attached. Not so, if they were placed in his hands as a pledge, or security for the debt; or if the debtor afterwards assent that they be detained for that purpose.

I admit that, by the principles of the civil law, as they have been applied to mortgages, if the debtor pledges property for the security of a debt, and *afterwards*another debt * is contracted to the same party, the creditor may retain until both debts are paid ; provided no other security is given, and no stipulation is made, with respect to the second debt, tending to *371negative the presumption of an implied contract that the pledge should be so retained. But this doctrine, I believe, is founded upon the presumption of such contract; and where there is no original contract to pledge, there can be no presumption with respect to a subsequent debt.

Suppose my creditor, to whom I have given security, believed to be satisfactory, borrows of me bank stock for the purpose of raising money ; shall he withhold this from me, until I pay him the debt ? Certainly not. He cannot, without my consent, appropriate it to his own use, or refuse to restore it to me. It is true, if I am obliged to sue him for his breach of contract, and he sues me for the debt, our executions may, according to statute, be set off against each other. But this is a statute remedy, and can exist only in the case provided for by the statute ; and it is reasonable that, when both demands are reduced to a level by judgment for money, one should go to pay the other. But it is not reasonable that my creditor should hold my property, or sell it, when I might prefer to keep it in specie, without any agreement with me to that effect. And I should conceive that the right of action in me, under such circumstances, proved that he had acquired no right to the property, by reason of my being his debtor.

Nor can any argument, in favor of such claim, be derived from our statute for the distribution of insolvent estates. For the demands, to be set off under the equitable construction of that statute, must be *mutual;*and when the creditor’s demand is for money, and the debtor’s estate is liable for a specific article, there is no mutuality ; and no mode is provided by statute, or can be easily devised, for the adjustment of claims of such different characters. If the administrator of an insolvent estate should claim a horse, or any other chattel, as belonging to the estate of the * deceased, as having been lent to the party called upon, or put into his stable or warehouse for safe keeping, the person could not set up his debt, in answer to such a claim. In the case of mutual demands for money due upon account, or otherwise, neither is, in equity or fact, the creditor for more than the balance due; for it may always be supposed that the advances, on either side, are made with a view to the subsisting accounts. But no such inference can be drawn in favor of a creditor who has got possession of specific property of his debtor, without any reference to his debt.

I hold it, therefore, to be clear that, if *Russell*were now alive, having possession of these certificates, without any claim to hold them except what he would derive from the debt of *Jarvis,*existing before they came into his hands, the administrator of *Jarvis’s*estate, *372although insolvent, would recover the full value of those certificates; and *Russell*could get nothing for his debt beyond his dividend in common with the other creditors. Neither is there any injustice in this; because, on the principles assumed, no credit was given to the property in his hands, and he would have no more equitable claim upon it than other creditors.

If this reasoning is correct, then the verdict in this case of *Jarvis*vs. *Rogers*was right; for, the property in the certificates remaining *Jarvis’s,*his administrator had done enough to entitle himself to the possession of them ; having tendered sufficient to satisfy *Rogers’s*demand against *Russell.*

But the motion for a new trial rests upon another ground; which is that, since the trial of the action, a paper has been found in the possession of *Russell’s*executrix, signed by *Jarvis*on the 29th of October, 1802, purporting to be a receipt for 500 dollars, and a promise to pay that sum when the certificates should be returned to him.

It may be proper to remark here, in relation to the former point, that it is hardly conceivable that *Russell*should have imagined that he had a right to hold the certificates for the former debt, or that he should have even * intended so to do, and yet have given no information of such intent, when this paper was signed. For, although it contains no promise, on the part of *Russell,*to return the certificates on the payment of the 500 dollars, yet such is the clear implication.

However this may be, it is not doubted that, *from this time, Russell*had, by consent of *Jarvis,*a lien upon the certificates, to secure the sum so borrowed. It is admitted, also, that he had a right to assign the pledge thus obtained, to the extent of his legal interest in it; and, considering the nature of the property pledged, it bearing, on the face of it, an assignable quality, it is admitted that *Rogers,*by *Russell’s*assignment to him, had a lawful lien for all which he advanced to *Russell*upon the credit of it. So that, in 1810, when *Rogers*received the certificates in pledge for 1000 dollars lent by him to *Russell,*he being ignorant of *Jarvis’s*property, and having reason to believe it had been transferred to *Russell,*he had a right to retain against *Jarvis*to the full amount of his debt. This has been settled in the former action between the plaintiff and *Rogers,*and is conformable to principles established in various decisions.

But it does not follow that *Russell*had acquired new rights over the property, or that *Jarvis*had, by this transaction, lost his rights. For, between these two parties, the assignment by *Russell*to *Rogers*for more than the amount for which the certificates had been pledged to him, was a breach of trust; the effect of which was not to in*373crease *Russell’s*rights, although, under the circumstances, *Rogers*acquired a more extended right over the property than *Rue-sell*had.

I apprehend it to be clear that *Jarvis,*by tendering the 500 dollars and interest to *Russell,*and the debt due to *Rogers,*might have entitled himself to a delivery of the certificates from Rogers; because *Russell*had exceeded his authority, in pledging them for a debt beyond that for which they were pledged to him. He had disabled himself from restoring them to the right owner; and this latter acquired *the right to reclaim them, wherever they might be found — paying the sums for which they were legally holden. And having tendered to *Rogers*the sum due from *Russell,*which exceeded the sum for which they had been pledged by *Jarvis,*this is a virtual payment of the sum due from him to *Russell.*

Nor does it make any difference that *Rogers*was under contract to deliver them to *Otis,*upon payment of the note given by *Otis*and *Jeffrey*after the death of *Russell.*For this was a mere continuation of the first pledge ; it never having been in fact redeemed, but the security only nominally changed. For *Otis*had no right to pledge them, and, acting for Mrs. *Russell,*it must be considered that this transaction was only a prolongation of the same contract.

It is said, however, that, before any demand by *Jarvis*which *Rogers*was bound to answer, — that is to say, before the money was tendered, — *Otis*had tendered the sum due from him, and then *Rogers*was bound, by his contract, to deliver the certificates to him. Be it so ; if he had delivered them, he would have a good defence against *Jarvis ;*but not having delivered them when this action was brought, and they being at this time in his possession, *Jarvis,*proving his property, has a right to recover them ; and if he does, *Rogers*may defend himself against the claim of *Otis,*because he will have delivered them to the right owner by judgment of law.

Thus I think it is shown that the pledge of 500 dollars does not stand in the way of *Jarvis’s*claim upon *Rogers;*and having before attempted to show that an antecedent debt, contracted without any reference to this pledge, cannot be covered by it, I see no reason why the verdict should not stand ; except for such mistakes in the amount, as may be corrected without going to another trial. The amount of *Rogers’s*debt should be deducted, the ground upon which it was refused at the trial being mistaken. And I think, also, that the value of 20,000 acres of the land should be deducted, or a new trial should be had. For, although certificates * of 150,000 acres are in *Rogers’s*hands, having all originally belonged to *Jarvis,*yet as *Jarvis*stated, in his *374letter of 1801, that his certificates in the hands of *Murdoch*were for 130,000 only, there is a presumption that the remaining 20,000 were transferred to *Russell*unconditionally.

(1)

13 Mass. *Rep.*105.

(2)

*Ambler,*252.

(3)

 3 *B. & P.*485.

(4) (a)

*Strange,*1178, *Patterson*vs. *Tash.*— 1 *East,*335, *Maanss*vs. *Píen \*<t. — 6 *East,*17, *Newsom*vs. *Thornton.*— *Ibid.*538, *M*’*Combie*vs. Davies. *(а)*Vide *Story on*Bailments, c. 5, § 324—327.

(5)

*D. & E.*604.

(6)

б) *6 East,*27, in notis.

(7)

*Stat*1784, c. 2.

(8)

 4 *Burr.*2221, *Green & Al.*vs. *Farmer & Al.*

(a)

*Hathaway*vs. *Russell,,*16 *Mass. Rep.*473. — Sed vide *Allen*vs. *Maguire,*post, 490.

(9)

 1 *B. & P.*143.

(10)

*Cod.*4, 31, 14—34. — 11 *Heinec. Elem. Juris.,*&c. *P.*3, § 213.

(11)

*Dig*6,1, 48. — *Heinec, Elem. Juris.,*&c. *P.*3, § 215, 216.

(12)

*Cod.*8, 27. — *Heinec. Elem. Juris.,*&c P. 4, § 46. — *Hub. Prac. lec.*lib. tit. 6, § 1.

(13)

2 *Mass. Rep.*498.

(14)

2 *Mass. Rep.*398.

(15) (a)

*Owen,*123, *More*vs. *Conham.*— 1 *Buls.*29, *Ratcliffe*vs. *Davis.*— *Yelv.*178, S. C. — *Cro. Jac.*244, S. *C. — Noy,*137, S. C. *(a)*Vide *Story on*Bailments, c. 5, sec. 327.

(16)

 2 *Vern.*691, 8. — 1 *Eq. Ca. Abr.*324, S. C.

(17)

*Cod.*8, 24. *1. — Huv. Pral. Lib.*20, tit. 3, § 3.

(18)

*Dig.*50.17. 15.

(a)

*Story on Bailments,*c. 5, sec. 304, 305 — *Green*vs. *Farmer, 4 Burr.*2214. — 6 T. *R.*258.—-7 *East, R.*224. —15 *Mass. Rep.*490, *Allen*vs. *M’Guire.*—2 *Kent Com.*584. — *Prec. Chan.*419 —2 *Vern. R.*691