lent representations,' by mistake.2 It lies to recover an account stated, and also to recover a final balance due from one partner to another growing out of a settlement of the business of the firm,* on a foreign judgment,5 for money accruing under a statute, by one cotenant against another who has received more than his share of the profits from the common property, and in all instances where bookaccount lies, when this remedy is given by statute. SEC. 21. For Torts, Assumpsit lies, when. Without stopping to multiply instances, it may be said that assumpsit lies for the breach of any simple contract, and in all cases where a contract or promise exists by express act of the parties, or where the circumstances are such that the law will imply a promise; and it may be said that under this head a recovery may be had for tortious acts, properly embraced under the head of actions ex delicto, in all those cases where from the circumstances of the case the law will imply a promise on the part of the wrong-doer to reimburse the party injured by his act. The party, under such circumstances, may elect to waive the tort and sue in assumpsit. Especially is this the case where a person has wrongfully or unlawfully obtained the goods of another and sold them,' or converted them to his own use, so that they cannot be returned in statu quo.' 10 Thus, where a person cut and carried away growing 11 wood of another, and converted it so that it could not be returned in specie, it was held that the owner might waive the tort and sue upon an implied contract of sale; 11 and in all cases where the gist of the transaction is a tort, if it arises out of a contract, the plaintiff may elect whether to declare in tort or in contract; 12 and this covers that class of actions arising from deceit, 13 fraud," or a breach of warranty in the sale Rogers, 3 Ill. 817; Sturtevant v. Waterbury, 2 Hall (N. Y. Sup. Ct.), 449; Harpending v. Shoemaker, 37 Barb. (N. Y.) 270; Berly v. Taylor, 5 Hill (N. Y.), 577. 10 Goodenow v. Snyder, 3 Iowa, 599; Jones v. Buzzard, Hempst. (U. S. C. C.) 240; Fratt v. Clark, 12 Cal. 89; McCullough v. McCullough, 14 Penn. St. 295; Dundas v. Muhlenberg, 35 id. 351; Allbrook v. Hathaway, 3 Sneed (Tenn.), 454; Chambers v. Lewis, 2 Hilt. (N. Y. C. P.) 591; Tankersley v. Childers, 23 Ala. 781; Patterson v. Prior, 38 Ga. 216. 11 Halleck v. Mixer, 16 Cal. 574. 12 Vasse v. Smith, 6 Cranch (U. S.), 226; Stoyle v. Westcott, 2 Day (Conn.), 422; Blalock v. Phillips, 38 Ga. 216. 18 Pearsall v. Chapin, 44 Penn. St. 9; Gray v. Griffith, 10 Watts (Penn.), 431. 14 Ascutney Bank v. McOrmsby, 28 Vt. 721; Leach v. Leach, 58 N. Y. 630. 9 of property. In a case where a tort may be waived and assumpsit brought therefor, the latter action will lie even though an action for the tort is barred by the statute. This was well illustrated in the case last cited, in which it was held that if a tenant for life has rendered accounts for the remainder-man of timber cut by him during a period of more than six years before a bill in equity for an account of such timber, and for the value of it, the statute cannot be pleaded to the bill; and the reason assigned was, that although if the remainder-man had brought trover the tenant might, notwithstanding the rendering of the accounts, have pleaded the statute, yet he could not have done so if the remainderman had brought assumpsit. SIR JOHN LEACH, V. C., in passing upon this question, said: "It is clear from the authorities that the plaintiff might have elected to bring an action of assumpsit, and not trover, for the money had and received by the defendant from the sale of timber, and that the rendering of the account as alleged by the bill would have been an acknowledgment by the defendant, which in the action of assumpsit would have taken the case out of the statute of limitations." In a Massachusetts case, the defendant obtained possession of certain promissory notes without a legal transfer from the owner, and received payment of some of them more than six years, and of others within six years, next before action brought; and it was held that he was liable in assumpsit for the sums received within the six years, and that he was estopped to say that the notes were obtained by fraud, and so an action of trover therefor would have been barred by the statute, upon the ground that a wrong-doer cannot allege his own wrong for the purpose of antedating the injury, so as to let in the statute; and that where the injured party has a right to either of two remedies, the one he chooses is not barred by limitation because the other is. The latter rule is illustrated in the case of a note secured by mortgage upon lands. Although the note may be barred by the statute in six years, yet the mortgage being a specialty is not barred, and the mortgagee may pursue his remedy upon the mortgage at any time before the statute has run upon it, and recover the lands or the full amount of his mortgage debt. The rule may be said to be that, although statutes of limitation are equally applicable in actions at law or proceedings in equity, yet, where there are two securities for the same debt, one of which is barred and the other not, the creditor, not 1 Camp v. Pulver, 5 Barb. (N. Y.) 41 ; Roth v. Palmer, 27 id. 652; Evertsen v. Miles, 6 Johns. (N. Y.) 138; Rew v. Barber, 3 Cow. (N. Y.) 272. But where assumpsit is brought for a breach of warranty, the plaintiff must declare specially on the contract, as it is the breach of that which constitutes the gist of the action. Russell v. Gilmore, 54 Ill. 147. 560. 2 Honey v. Honey, 1 Sim. & Stu. 8 Lamb v. Clark, 5 Pick. (Mass.) 193; Jones v. Hoar, id. 285; Willett v. Willett, 3 Watts (Penn.), 277; Ivory v. Owens, 28 Ala. 641; Martin v. Brooklyn, 1 Hill (N. Y.), 545. withstanding he has lost his remedy at law on the former, may pursue it in equity on the latter. And the same rule prevails where a person is given certain personal property to hold as collateral security for the payment of a note or other obligation. The statute runs upon the debt, but this does not defeat the creditor's lien upon the property given as collateral. The statute simply bars the remedy, it does not extinguish the debt; consequently, where a lien is given upon prop erty for the payment of a claim, whether by contract or by the custom and usage of trade, the lien may be enforced, although the remedy upon the debt itself is barred. Thus, in the case last cited, the de 1 Thayer v. Mann, 19 Pick. (Mass.) 535; Ayres v. Wait, 10 Cush. (Mass.) 72; Hanlon v. Hannon, 123 Mass. 441. In the ease of a claim secured by a mortgage, although the remedy by an action at law for the claim may be barred by the statute of limitations, the remedy under the mortgage will not be affected by any lapse of time short of the period sufficient to raise the presumption of payment. Hanna v. Wilson, 3 Gratt. (Va.) 242; Coles v. Withers, 33 id. 186; Elkins v. Edwards, 8 Ga. 325; Thayer v. Mann, 19 Pick. 535; Pratt v. Huggins, 29 Barb. (N. Y.) 277; Borst e. Corey, 15 N. Y. 505; Belknap v. Gleason, 11 Conn. 160; Miller v. Trustees of Jefferson College, 14 Miss. 651; Trotter v. Erwin, 27 id. 772; Nevitt v. Bacon, 32 id. 212; Joy v. Adams, 26 Me. 330; Wiswell v. Baxter, 20 Wis. 713; Cookes v. Culbertson, 9 Nev. 199; 3 Pars. on Cont. 99, 100; Smith's Executrix v. Washington City, Virginia Midland, & Great Southern Railroad Co., 33 Gratt. (Va.) 84. In New Hampshire the statute expressly provides that actions upon notes secured by mortgage may be brought so long as an action upon the mortgage itself may be brought. See Appendix, New Hampshire. Harris v. Mills, 10 N. H. 429. In Illinois, it is held that, if the mortgage contains no covenant for the payment of money, the statute runs upon the right to foreclose it whenever the note which it is given to secure is barred. 2 Slaymaker v. Wilson, 1 P. & W. (Penn.) 216. In Higgins v. Scott, 2 B. & Ad. 413, an attorney had a lien upon a judgment for a debt which was barred by the statute, and it was contended that in consequence his lien was lost; but the court held that the statute of limitations only barred the remedy and did not destroy the debt, so that the attorney had a right to be paid from the sale of the goods upon an execution issuing on the judgment, following out the principle upon which Spears v. Hartley, 3 Esp. 81, was predicated, that, although the statute has run upon the demand, yet if a creditor obtains possession of goods upon which he has a lien for a general balance he may hold them for that demand by virtue of his lien. 3 Spears v. Hartley, 3 Esp. 81. All liens which are created by a deposit of personal property by one person in the hands of another, under an express or implied stipulation that the latter shall be entitled to retain it for his security until some debt due to him from the former is discharged, are in the nature of pawns or pledges, whether the deposit was made for the execution of some purpose on the goods in the course of trade or for bare custody. But the term "pawn," as generally understood, applies only where goods are deposited for the latter purpose; but in this connection we use the term as applicable to both purposes. The distinction between a pawn and a mortgage is of great importance, and is well given by LORD HARDWICKE in Ryall v. Rowles, 1 Atk. 167, the substance of which is, that a mortgage is a conditional sale, by which the general legal property in the thing mortgaged is conveyed to the mortgagee, subject to the mortgagor's power of redemption. But by a pawn the pawnee acquires only a special property in the thing pawned, with the right to detain it for his security until it is redeemed, the general property still remaining in the pawnor. At law, although not in equity, a fendant, a wharfinger, claimed a lien upon a log of mahogany for wharfage and a general balance on account. The balance claimed mortgage operates as a transfer of the property, and therefore no lien can exist, for a right of lien necessarily supposes a right of property in another; and it would be a contradiction of terms, and absurd, to say that a man had a lien upon his own property. BULLER, J., in Lickbarrow v. Mason, 6 East, 25, n. In the case of pawns, a lien is created by the transaction itself, and may be claimed to any extent to which the agreement by which the pledge is effected declares it shall extend, whether it be for money previously lent, or at the time of deposit, or to be thereafter advanced. Thus, the acceptor of a bill of exchange may retain money and effects of the drawer in his hands to discharge it, either until the bill is delivered up to him or until he receives a bond of indemnity against being sued upon it. Hammond v. Barclay, 2 East, 227; Madden v. Kempster, 1 Camp. 12. But quare, whether if the drawer, payee, and acceptor of a bill become bankrupts after the bill is negotiated, and the payee is in possession of property of the drawer, who, in the event of the bill being proved against the estate of the payee, will be indebted to the payee, the assignee of the bankrupts under the commission against the estate of the payee will have any lien arising from the possibility of such debt. Walker v. Birch, 6 T. R. 208. It often becomes a question how far a subject which is pledged for a debt already due can be considered as a security for further loans where there is no agreement to that effect, and it may be said that questions of this character must be determined largely by the circumstances of each case. If it can be presumed from these that the ground and inducement upon which the pawnee advanced the further loans was his having a pledge in his hands, a court of equity will not suffer the pledge to be redeemed without payment of all the advances. Ex parte Ockenden, 1 Atk. 236. Thus, where a testator had borrowed a sum of money upon a pawn of jewels, and afterwards borrowed three other several sums of the pawnee, for each of which he gave his note, without taking any notice of the jewels, it was held that his executors could not redeem the jewels without first paying the money due upon the notes, because it was presumed, from the money being lent subsequent to the deposit of the pledge, that the pawnee lent the money on the credit of the pledge. Demainbray v. Metcalf, 2 Vern. 291. But it must not be understood that there is any general rule, either at law or in equity, that where a person holds security for a loan already made, advances a further loan to the same person, he invariably is entitled to hold such security until both loans are repaid; because, if there is anything in the circumstances attending the transaction, or subsequently, that tends to rebut the presumption that the last loan was made on the faith of the security, he can only retain it for the payment of the first loan. Ex parte Ockenden, ante. Thus, where personal securities were pledged to secure a specific debt, and afterwards a mortgage was made by the pawnor to the pawnee of certain lands, and no mention was made of the debt for which the personal securities were pledged, and afterwards the same securities, together with others, were pledged to the pawnee for the balance of an account due to him from the pawnor, no notice being taken of the mortgage, redemption of the personal securities was decreed without compelling the discharge of what was due on the mortgage, because there appeared to have been no intention of tacking the secu rities to the mortgage at the time the latter was made, and because, if such an intention did exist, it was waived by the subsequent pledge of the securities without noticing the mortgage, and the transactions were entirely distinct. Jones v. Smith, 2 Ves. Jr. 372. The decree in this case was reversed in the House of Lords (6 id. 229, note d), but not upon any ground im pugning the doctrine stated. See also Vanderzee v. Willis, 3 Bro. C. C. 21; Adams v. Clayton, 6 Ves. Jr. 226. It may be said, in drawing this rather desultory note to a close, that at the common law a lien cannot be acquired in either of the following cases: — 1st. Where the deposit is made after an was barred by the statute of limitations, and for that reason the plaintiff insisted that the defendant could not justify under the lien. But the court held otherwise, LORD ELDON saying: "If what is claimed by the defendant's counsel as law, that the debt is discharged by the operation of the statute of limitations, no lien could be obtained by reason of it. But the debt was not discharged; it was the remedy only. I am of the opinion that, though the statute of limitations has run against a demand, if the creditor obtains possession of goods on which he has a lien for a general balance, he may hold them for that demand by virtue of the lien. In this case the defendant had a subsisting demand when the goods came to his possession, and I am of opinion he may enforce it by the lien which the law has given him for his general balance." In the case last cited this doctrine was extended to an attorney's lien upon a judgment, although his debt was barred by the statute. In that the attorney for the plaintiff had obtained judgment, and the defendant was afterwards discharged under the Lord's Act. But at a subsequent period a fieri facias issued against his goods, upon which the sheriff levied the damages and costs, and it was held that the attorney, although he had taken no step in the cause, or to recover his bill and costs within six years, still had a lien on the judgment therefor, and the court directed the sheriff to pay him the amount out of the proceeds of the goods. In Virginia it has been held that the statute does not run against the lien of a grantor for the pur open act of bankruptcy by the pawnor, or with the intent to give the pawnee a fraudulent preference over other creditors in the event of his bankruptcy. Tamplin v. Diggins, 2 Camp. 312; Wilson v. Balfour, id. 579. 2d. Where the goods were pawned with. out the authority of the owner, even though the pawnee was ignorant of the fact. Marsden v. Punshall, 1 Vern. 407; Maans v. Henderson, 1 East, 337; De Bauchant v. Goldsmid, 5 Ves. Jr. 211; Daubigny v. Duval, 5 T. R. 604; Strode v. Blackburn, 3 Ves. Jr. 222. This rule, of course, does not apply to such property or securities as are placed upon the same footing as money, -as banknotes, notes payable to bearer, bills of exchange duly indorsed, and such other securities, the legal interest in which by the law merchant passes upon delivery, and which, if passed to a bona fide holder for value, cannot be recovered by the original owner. Miller v. Race, 1 Burr. 432; Glyn v. Baker, 13 East, 509; Grant v. Vaughan, 3 Burr. 1516; King v. Milsam, 2 Camp. 5; mon 2 Lowndes v. Anderson, 13 East, 130; Solov. Bank of England, id. 135, n.; Peacock v. Rhodes, Davy, 682; Hill v. Simpson, 7 Ves. Jr. 152; Taylor v. Hawkins, 8 id. 209; Newson v. Thornton, 6 East, 17; Murlead v. Drummond, 17 Ves. Jr. 152; McCombe v. Davies, 6 East, 538; Paterson v. Tash, 2 Strange, 1178; Hoare v. Harstopp, 3 Atk. 44; Horwood v. Smith, 2 T. R. 750; Viner's Abr. tit. Pawn (E). It has been held, however, that where goods obtained by false pretences were pawned without notice of the fraud to the pawnee, that he acquired a lien thereon, so that he could maintain trover therefor against the owner who took them out of the pawnee's possession. Parker v. Patrick, 5 T. R. 175. |