
    Ball vs. Stanley.
    If a debtor tender bank bills instead of gold and silver, and the creditor does not object to the tender upon that account, but refuse to receive them because not the amount due, the tender will be a good one, if it is the amount actually due.
    When a debtor pledges property for a certain sum, and the creditor af-terwards procures another demand against the debtor, which is not expressly agreed to be charged upon the property, the creditor cannot retain the property for the latter sum.
    Upon a tender of the money, for which property is pledged, being made by the debtor, and refused by the creditor, the debtor may maintain trover against the creditor for the property, and is entitled in damages for the full value of the property pledged, without any abatement for the amount for which the property was pledged. The creditor must, to his action to recover the money. "¶
    A tender of the money by the debtor,.and a refusal fep-éáíve it by the ; creditor, discharges the lien upon the property pawned, and^pl|<ms-thgtjrei| ties, in relation to the property pawned, qs though thej&i/ioiMt drhlr debt had been made, and no pawn had ever existed.
    Stanley advanced to Ball and paid for himl^tgral shim of money, for the security of which Ball pledgecTto^iimi the horse in dispute. Stanley afterwards purchased a debt of thirty-seven dollars on Ball, but without any agreement or understanding with Ball that the horse should be retained in pledge for that sum also. Ball tendered to Stanley the whole sum due, as originally advanced on the pledge, and offered to redeem the horse. Stanley refused to receive the seventy-five dollars, which was tenc^ere<^ United States Bank notes, because he said he was entitled to a larger sum; but he made no objection to the tender on account of bank notes, and not gold and silver coin having been tendered. Ball then brought his action of trover for the horse, and on the trial had a verdict and judgment against him, the circuit court charging the jury, “that the tender in bank notes was not a good tender, though no objection was made on that account, but the refusal to receive the money was made because a larger sum than that tendered was demanded.” The court also charged, that if the jury should find for the plaintiff, as he had retained the money tendered, they should only find the difference between that sum and the value of the horse, thereby doing justice between the parties. The plaintiff appealed in error to this court.
    
      R. J. M’Kinney, for plaintiff in error.
    
      J. A. M'Kinney and J. Williams, for def’t. m error.
   Green, J.

delivered the opinion of the court.

Whether a tender in bank notes will be good or not, must depend upon the conduct of the party to whom the money may be offered. If a tender be spoken of, and the creditor utterly refuse to receive the money at all, in such case no money need be produced, because the creditor by expressly refusing to receive the money, waives the necessity of its offer, which in such case would be an useless formality. Norris’s Peake, 432. Upon the same reason, the tender of bank notes, when no objection is made on that account, but the objection to receive it is placed solely on the ground that more is due, the creditor cannot afterwards object that bank notes had been tendered; for that objection would be to the formality of the tender, which he had waived by putting his objection on another ground, and insisting that a larger sum than that offered was due. The tender by Ball having been made to the full amount for which the horse was originally pledged, and no agreement being proved that the horse should remain in pledge for the thirty-seven dollar debt purchased by Stanley of Fhin, it.was a good tender, though made in bank notes, because Stanley did not object on that account, but on account that more was due. Norris’s Peak, 432: 4 Espin. Rep. 267: 3 Term Rep. 554.

As to the question of damages, the court erred in its charge.

If a creditor refuse to deliver the property pawned for the security of his debt, on tender of the .amount due, and the property being demanded, his special property then ceases, and he becomes a wrong doer; is-guilty of conversion to his own use, for which the action of trover lies. 5 Bac. Abr. 263, Trover D: Cro. Jac. 244: 2 Kent’s Com. 450. The tender places the parties in re- | lation to the property pawned, as though payment of the f debt had been made. -He had no longer any lien on him for the money, but the parties stood in the same relation as though no pledge had ever been made, and Stanley had acquired the horse :by a wrongful act. The consequence must be, that although Stanley’s debt remains, for which he has a right of action .against Ball, yet Ball has a right of action- for his horse, as though he were not the debtor of Stanley, and consequently must recover full damages.

The judgment must be reversed, and the cause remanded to the circuit court of Hawkins county, for another trial to be had therein, when the law will be charged as laid down in this opinion.

Judgment reversed,  