Taylor v. Cheever

Metcalf, J. There can be no doubt of the correctness of [148] the referee’s decision. Looking only at the terms of the defendant’s agreement, and taking for granted that the recital therein, as to the plaintiff’s having received the shares as security, was true, or that the plaintiff is estopped to deny its truth, nothing can be more clear than that the promise to pay the note was not on condition that the plaintiff should transfer to him those shares. The holder of collateral security is not required to give it up before he can maintain an action on his principal claim, unless he has stipulated so to do. And the plaintiff has not made any such stipulation, express or implied. The only condition precedent to the plaintiff’s right to call on the defendant, upon his agreement, was the failure of Russell to pay the note at maturity. On Russell’s failure to pay it, the plaintiff’s right of action accrued. The decision in Cleverly v. Brackett, 8 Mass. 150, that a creditor, to whom his debtor has pledged a chattel as security for a debt, cannot, in a suit for the debt, attach other property of the debtor without first returning the pledge, is contrary to all the authorities before and since, and is not to be regarded as law.* On the foregoing view of this case, which is the most favorable that can be taken for the defendant, the plaintiff is entitled to judgment on the award, without resorting to the fact, that he never received a transfer of the shares. Judgment on the award. Footnotes [*] South Sea Co. v. Duncomb, 2 Stra. 919, and 2 Barnard. 51. Anon. 12 Mod. 564, and Cas. temp. Holt, 461. Lawton v. Newland, 2 Stark. R. 72. Emes v. Widdowson, 4 Car. & P. 151. Cornwall v. Gould, 4 Pick. 448. Morse v. Woods, 5 N. H. 300. Wilson v. Clough, 6 Verm. 123. Trotter v. Crockett, 2 Porter, 401. Kemmil v. Wilson, 4 Wash. C. C. 308. Edwards on Bailments, 234 235.