detainer, unless under special circumstances." In Tucker v. Wil

*705] son, 1 P. Wms. 261, where an Exchequer annuity had been assigned for securing a loan, with a defeasance, that if the money were paid at such a day, the assignment should be void, Lord Harcourt held that the mortgagee had no power to sell on default, such a power not having been expressly reserved to him by the deed; but the decree was reversed by the Lords,-Wilson, app., Tooker, resp., 5 Bro. P. C. 193. In Martin v. Reid, 11 C. B. N. S. 730 (E. C. L. R. vol. 103), a doubt is suggested as to the right of a pawnee to sell the pledge, where no day has been fixed for the payment of the sum for which the chattel is impignorated. In the course of the argument in that case, reference is made to a note of Mr. Smith to the case of Coggs v. Bernard, in 1 Smith's Leading Cases, 5th edit. 194, where it is said: "A pawn differs, on the one hand, from a lien, which conveys no right to sell whatever, but only a right to retain until the debt in respect of which the lien was created has been satisfied [see The Thames Ironworks Company v. The Patent Derrick Company, 1 Johns. & II. 93], and on the other hand from a mortgage, which conveys the entire property of the thing mortgaged to the mortgagee conditionally, so that, when the condition is broken, the property remains absolutely in the mortgagee; whereas, a pawn never conveys the general property to the pawnee, but only a special property in the thing. pawned; and the effect of a default in payment of the debt by the pawnor, is, not to vest the entire property of the thing pledged in the pawnee, but to give him a power to dispose of it, accounting for the surplus, which power, if he neglect to use, the general property of the thing pawned continues in the pawnor, who has a right at any time to redeem it,"-citing Com. Dig. Mortgage (B.); Walter v. Smith, 5 B. & Ald. 439 (E. C. L. R. vol. 7); Kemp v. Westbrook, 1 Ves. Sen. 278; Demandray v. Metcalf, Pre. Ch. 419, 2 Vern. 691; Vanderzee v. Willis,

3 Bro. C. C. 21; Ratcliff v. Davis, Yelv. 178. *In another part

*706] of the note it is said, that, "if the pawnor make default in pay

ment at the stipulated time, the pawnee has a right to sell the pledge, and this he may do of his own accord, without any previous application to a court of equity," referring to Pothonier v. Dawson. Here, the right of sale attached on default being made in payment of the 51. on the 6th of August. Having thus a right to sell on the 7th, the defendant agrees, in consideration of the sum of 10s., to postpone the exercise of that right for a month,-or, as the jury have found, for an indefinite time. For selling in the meantime, it might be that the defendant may be liable to an action of some sort, but clearly not to an action for a wrongful conversion. The fact of the defendant having demanded more than he was entitled to, makes no difference. This is not like the case of a demand made to establish a forfeiture, which was required to be in the strictly proper form and of the proper sum. Take the ordinary case of a notice of dishonour, which need not be strictly accurate in all its particulars, but which is sufficient if it substantially points out to the drawer or other party to whom it is addressed, that the bill has been dishonoured, and that he is looked to for payment: Stockman v. Parr, 11 M. & W. 809; Bromage v. Vaughan, 9 Q. B. 608 (E. C. L. R. vol. 58). So, here, it is submitted that the defendant's letter of the 17th of September substantially

conveyed an intimation to the plaintiff, that, unless the sum due from him upon the note was paid, the defendant would proceed to sell the pictures.

Watkin Williams, in support of the rule.-It does not follow as a matter of law, that, because a day is fixed for the payment of the money, that is necessarily the last day the party has to redeem the pledge. Something subsequent must be done. The power of [*707 *sale in such a case is but an inference of fact from what the parties are assumed to have intended. Pothonier v. Dawson is the only case which has held,-and that rather as an inference of fact,that the power of sale can be exercised without a demand of the money, and without notice that the article will be sold unless the advance be repaid. The observations in Mr. Smith's notes to Coggs v. Bernard refer to cases where there is a stipulated time for repayment, which the jury have negatived in this case. In 2 Kent's Commentaries 581 (10th edit. 804), the law is thus stated: "At common law, if the pledge was not redeemed by the stipulated time, it did not then become the absolute property of the pawnee, but he was obliged to have recourse to process of law to sell the pledge; and, until that was done, the pawnor was entitled to redeem. If the pledge was for an indefinite time, the creditor might at any time call upon the debtor to redeem, by the same process of demand. Where no time was limited for the redemption, the pawnor had his own lifetime to redeem, unless the creditor in the mean time called upon him to redeem and, if he died without such call, the right to redeem descended to his personal representatives. The law now is, that, after the debt is due, the pawnee may not only proceed personally against the pawnor for his debt without selling his pawn, for it is only a collateral security, but he has the election of two remedies upon the pledge itself. He may file a bill in Chancery, and have a judicial sale under a regular decree of foreclosure; and this has frequently been done in the case of stock, bonds, plate, and other chattels pledged for the payment of the debt. But the pawnee is not bound to wait for a sale under a decree of foreclosure, as he is in the case of a mortgage of land (though Lord Chancellor Harcourt once held *otherwise); and he may sell without judicial process, upon giving [*708 reasonable notice to the debtor to redeem. This was so settled in the cases of Tucker v. Wilson, 1 P. Wms. 261, 5 Bro. P. C. 193, and of Lockwood v. Ewer, 2 Atk. 303. The notice to the party in such cases is, however, indispensable. This was conceded in Tucker v. Wilson, and it has since been so ruled in this country (De Lisle v. Priestman, 1 Browne's Penn. R. 176; Covell v. Gerts, 9 Law Reporter for July, 1846). The old rule existing in the time of Glanville, and which is now the rule on the continent of Europe, and in Scotland, required a judicial sentence to warrant the sale. The Code Napoléon (art. 2078) has retained the same check, and requires a judicial order for the sale; and the Code of Louisiana has followed the same regulation. The civil law allowed the pawnee to sell in case of default of payment, and after due notice, on his own authority; but, if there was no special agreement, it required a two years' notice to the debtor, by an order of Justinian." To the like effect is the law laid down in Addison on Contracts, 4th edit. 325 et seq., where the authorities are C. B. N. S., VOL. XV.-27

carefully collected and reviewed. Here, on the application of the debtor, a new contract for an indefinite extension of the time of payment is entered into in consideration of a monthly payment of 10s.(a)

ERLE, C. J.-We granted a rule nisi this morning in a case of Johnson v. Stear, which seems to involve the same question. We will therefore suspend our judgment in this case until that rule has been argued, so that one consistent decision may govern the two cases.(b) Cur, adv. vult. *ERLE, C. J., now delivered the judgment of the court: (c)—

*709] In this case the plaintiff sued the defendant in trover for the wrongful sale of two pictures. They had been placed in the defendant's hands by the plaintiff on the occasion of a loan of 5l., for which the plaintiff gave the defendant a promissory note at a month, 17. having been deducted for interest in advance. When the note became due, viz. on the 6th of August, 1862, the defendant applied to the plaintiff for the amount. But he requested further time for payment, which the defendant allowed, on the terms of 10s. a month being paid for interest. According to the defendant's evidence, a single month's time was given: but the plaintiff swore,-and the jury believed him, -that the extension of time on these terms was indefinite. After the first month's extended time had expired, viz. on the 17th of September, the defendant wrote to the plaintiff to the effect that, unless the amount of his claim was paid, he should proceed to sell the pictures in liquidation of it. But, by mistake, he claimed 17. too much by this letter; and it did not reach the plaintiff till he returned to London in November. At that time the pictures were unsold. No further communication took place between him and the defendant till after the defendant had sold the pictures. The plaintiff then tendered the defendant the debt, with the stipulated monthly interest, and demanded back the pictures. But the defendant declined to accept the money, on the ground that he had already sold them. On these facts, the question arose, whether such sale was unauthorized, inasmuch as the jury found that it was not expressly made a part of the original *710] agreement, that the defendant should have a *power to sell in default of due payment of the note. The judge at the trial thought that the defendant had nevertheless authority to sell, inasmuch as the deposit was made as a security for the payment of the debt on a future day certain. And the verdict was accordingly entered for the defendant.

We think that the judge was right as to this point, on the authority of the cases collected in the notes to Coggs v. Bernard, in Smith's Leading Cases, 5th edit. 171, and the recent decision of this court in Johnson v. Stear, antè, p. 330.

But it is unnecessary for the court to determine this question, because leave was also given to move to enter a verdict for the plaintiff on another point, viz., that, before the power to sell, supposing it to have been conferred, was exercised, the parties had substituted a new agreement, under which the time for payment, and consequently

(a) Which, it seems, was not paid.

(b) See Johnson v. Stear, antè, p. 330, which however ultimately turned upon a different point. (c) The case was argued before Erle, C. J., Williams, J., Byles, J., and Keating, J.

the power of sale, was indefinitely extended. And, on this latter point, our opinion is in favour of the plaintiff; for, although it was certainly competent to either party, by taking proper steps, to terminate the new arrangement, yet we think the mere sending of the letter demanding an excessive amount had not that effect.

The verdict must therefore be entered for the plaintiff for 207, the damages found by the jury. Rule absolute accordingly.

*711]

*BARTHOLOMEW and Others v. MARKWICK,
Jan. 7.

The plaintiffs and defendant entered into a treaty for the sale and purchase of a large quantity of furniture, to be paid for half in cash and the residue by bill at six months. A portion of the goods having been delivered the parties disagreed, and the defendant wrote to the plaintiffs as follows:-"The way you do your business will not suit me. I have an account for a large amount of goods not purchased, and a demand made for payment, opposed to treaty. I now close all further orders, and desire what I have not purchased may be taken off my premises":-Held, that the plaintiffs were entitled to treat this letter as a rescision of the contract, and to sue at once upon a quantum valebant for the goods delivered and kept.

THIS was an action for goods sold and delivered. indebted.

Plea, never

At the trial before Keating, J., at the sittings at Westminster after last Trinity Term, it appeared that the action was brought to recover the price of certain furniture supplied to an hotel which the defendant was about to open in Hanover Square; the terms on which the goods were sold, being, present payment of one-half in cash, the remainder by bill at six months. The first portion of the goods, which amounted to 887. 17s., after deducting for certain articles not in accordance with the order, was sent on or about the 3d of April, 1863. The whole supply contemplated would amount to between 600l. and 7007. The plaintiffs requiring payment or security for the goods already sent, before supplying any more, the defendant on the 17th of April wrote

to them as follows:

"Gentlemen,- The way you do your business will not suit me. I have an account for a large amount of goods not purchased, and a demand made for payment, opposed to treaty. Your salesman well knows my terms: and I now close all further orders, and desire what I have not purchased may be taken off my premises. I will not be responsible for them against damage. MARK MARKWICK." "I shall settle your amount upon the terms agreed, when corrected. I can but regret my recommendation."

Some further communication took place between the parties; and, on the 21st of April, the defendant wrote to the plaintiffs, as follows: "Gentlemen,-I am surprised at what I have heard, that

*712] you demand security for further orders. You will give me cause for this fairly. When you have done so, or upon your doing so, I am ready to close my account upon the terms agreed upon and this day assented to by you. I am willing also to carry out my order in good faith,"-stating certain particulars,-"and pay also when delivered, upon the same terms as agreed. As to my position, I know it, and what is in my possession in property, and which in three or four months is coming to me. I have no desire to have goods refused to me: but I can do without thein. I leave you to carry out in good faith, after reference had from a man of the highest standing: and I desire to know, as is fair to me, what is said of me.

་

"MARK MARKWICK."

On the part of the defendant it was objected that the plaintiffs should have declared upon the special contract, and could not recover on the count for goods sold and delivered, at all events until after the expiration of the six months' credit: and for this was cited Chitty on Contracts, 6th edit. 390.