Henry v. Eddy

• Decision Date: 30 April 1864
• Parties: DAVID HENRYv.PHILANDER EDDY.
• Court: Illinois Supreme Court

34 Ill. 508

1864 WL 3014 (Ill.)

DAVID HENRY

v.PHILANDER EDDY.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from Circuit Court of Cook County.

Replevin by appellee against appellant, to the declaration in which a count in trover was added, for a certain promissory note, executed by Redmond Prindiville to appellee, and which being in the appellant's possession, he refused, upon demand therefor, to surrender to the appellee, claiming the right to hold it as security for a debt owed by appellee to the estate of Andrew Combs.

Upon the trial the defendant requested the following instruction, which was refused as requested, but given with the qualification included in brackets and printed in italics:

(2) “If the jury believe from, etc., that the plaintiff was indebted to the estate of Andrew Combs at the time this suit was brought, and that the note in suit was held by defendant as collateral security for plaintiff's indebtedness aforesaid, to the estate of said Combs, and that the said note was so held by defendant with plaintiff's knowledge and consent; in that case the plaintiff cannot recover in this action.

And it makes no difference as to the rights of the parties in this case, whether the note in suit had been originally pledged by the plaintiff to Combs himself for the purpose above mentioned, and that it passed from Combs' possession to that of defendant upon the same trust, or whether it was originally left with defendant by the plaintiff himself as a security for Combs' benefit, provided the jury are satisfied from the evidence that the plaintiff [ agreed and consented to defendant's retaining the said note as collateral security for an indebtedness of plaintiff to Combs, and] has expressly recognized the right of defendant to hold the note for the purpose aforesaid.”

The jury found for the plaintiff, with $257.50 damages, for which judgment was rendered upon the count in trover.

The errors assigned are:

(1) In refusing defendant's second instruction, as requested, and in giving it with the aforesaid qualification.

(2) That the verdict was clearly against the evidence.

(3) In overruling defendant's motion for a new trial, which was moved for on account of the modification of said instruction, and on the ground that the verdict was against the law and the evidence.

Hoyne & Ayer, for appellant.

S. Ashton, for appellee.

WALKER, C. J.

When the owner pledges property or choses in action as a security for the payment of a debt, the creditor, without doubt, has the legal right to hold the pledge until the debt is discharged. The owner, to reinvest himself with the right to resume possession of the property, must pay the claim, or at the very least make a sufficient tender. On the death of the creditor the right to hold the pledge passes to his...