McCalla v. Clark

Bleckley, Judge. The head-notes are so copious and explicit that little need be said by way of supplement. The defendant had not disposed of the pledge when suit was brought. Under the circumstances, the demand and refusal' relied upon did not establish a conversion. There were lawful charges upon the property which were not tendered. The plaintiff was a delinquent debtor, and, having himself disregarded the element of time, was not in a situation to exact a very scrupulous regard of that element on the part of his creditor.. It was but reasonable for the latter to have a few. hours to consult counsel-on the point of forfeiture, as the day appointed by the debtor for payment had long passed. If. the debtor had been prompt he might have had no cause to complain of the want of promptness in the creditor. It is, perhaps, not an uncommon failing to insist upon expedition which we do not practice. The prayer of the special plea may have been improper, but the substance of the plea was good as matter of recoupment, or in mitigation of damages: 15 Mass., 389; 13 Metcalf, 267; 4 Denio, 227; 20 Wend., 267, 273; 14 Ill., 424; Story on Bailments, sections 315, 849. Judgment affirmed.