
    Thomas Morse versus John L. Woods.
    Where a chattel, or a chose in action is pledged for the payment of a debt, the pledge is not released by committing the body of the debtor to prison upon an execution for the debt.
    When an agent is employed to receive money lor his principal, he cannot appropriate the money received to pay what may be due to him from the principal, without the consent of the latter.
    Assumpsit for money had and received. The cause was tried upon the general issue, at May term, 1830, when it appeared in evidence, that one Robert Barnet, having delivered a note for $21, payable to himself in whiskey, and made by one Rufus How to Abel Wells, to be collected, and having taken the receipt of Wells to account for the same note, sometime previous to the year 1816 delivered the same receipt to the plaintiff to secure the payment of an execution, which had issued on a judgment for $44,43, rendered in favor of the plaintiff, against said Barnet, in the year 1810.
    How, removed to the State of New-York, and in the year 1816, Wells sent the note by the defendant to an attorney there to be collected, and about the same time notice was given to Wells by the plaintiff" and Barnet, that the contents of the note, when collected, would belong to the plaintiff.
    In the year 1817, the plaintiff caused the said Barnet to be committed, by virtue of the said execution, to prison, from which he was liberated by taking the poor debt- or’s oath. After this the said Barnet authorised the de~ fendant to collect the said note, and apply the proceeds to the payment of what was due from Barnet to the defendant.
    In the year 1820, the sum of $25 was collected of How, and in the year 1822 was received by W. Wells, a son of Abel Wells. The said Abel Wells directed the said W. Wells not to pay out the said money until he obtained the said receipt from the plaintiff, because he supposed the money belonged to the plaintiff. But W. Wells paid the money to the defendant, he promising to indemnify the said Abel Wells against the claim of the plaintiff Previous to the commencement of this action, the defendant being requested to pay the said money to the plaintiff, refused.
    It further appeared in evidence, that the plaintiff sent to the defendant, in the year 1824, a writing in the following words :—
    
      li Hartford, May 20, 1824.
    Sir — I wish you to receive my shingles coming to this market, &c. and deliver the same to Gaius Lyman, and take his receipt for the same, and please also to give him a receipt for the money he may pay on account of the shingles. Signed, THOMAS MORSE.
    To Mr. JOHN L. WOODS,
    or SAMUEL HUTCHINS.”
    Upon this writing, the defendant received of Gaius Lyman in the summer of 1824, the sum of $46,32. At the time this sum was received by the defendant, there were two firms at Well’s river, one known by the name of Hutchins and Goodalls, and the other by the name of Hutchins, Goódall and Woods, and the defendant was one of the last mentioned firms.
    Ira Goodall was one of the partners in each of the said firms, at the said time, but in the year 1825, the said Ira sold to Samuel Hutchins, Junior, his interest in said firms, and the said Samuel has since held the same interest in the firms that the said Ira had.
    
      The defendant having given to the said Samuel Hutch-ins, Junior, a release from all liabilities in this suit, called him as witness.* The plaintiff objected, but he was admitted to testify, and stated that on the 23d December, 1824, ail attempt was made to settle the accounts between the plaintiff and the firm of Hutchins, Goodall and Woods, and upon stating the accounts, there appeared to be a balance due from the plaintiff to that firm of $51,45, and the defendant claimed to apply the said sum of $46,32, received of Lyman as aforesaid, towards the payment of that balance, but the defendant denied that any balance was due to that company, and said that he intended the said sum of $46,33 should go to the firm of Hutchins and'Goodall.
    Since that time a settlement has been made between the plaintiff and the last mentioned firm, hut the said sum of $46,32, was not included in that settlement. But no settlement has yet been completed as to the accounts between the plaintiff and the said firm of Hutchins, Goodall and Woods.
    A verdict was taken by consent of the parties for the defendant, subject to the opinion of the court upon the foregoing case.
    
      Goodall, Woods and J. Parker, for the plaintiff.
    
      Bell, for the defendant.
   Richardson, C. J.,

delivered the opinion of the'Court

Barnet, by placing the receipt of Wells in the hands of the plaintiff, made How’s noté a pledge for the payment of the judgment, .and Morse is now entitled to recover of the defendant the sum the latter received of Wells, unless by causing Barnet to be committed for the debt, for which the note was pledged, he must be considered as having elected to abandon the pledge. 8 Johns. 96, Brown v. Bemens ; 1 B. & P. 398, Roberts v. Eden; 10 Johns. 471, M'Lean v. Walker; 2 Vesey, Jr, 378 ; 5 Johns. 258, Garlick v. James; 2 Johns. C. R. 100 ; 2 Caine’s Cases, 200, Cortelyou v. Lansing ; 1 Equity Cases Ab. 139 ; 2 Salkeld, 522 ; 5 Pick. 59; Ward v. Sumner; 1 Wilson, 260, Ryall v. Rolle ; Com. Dig. " Mortgage;" A. & B. ; Yelverton, 178.

The question then, is, was the commitment of Barnet a release of the pledge ?

In the case of Cleverly v. Brackett, 8 Mass. Rep. 150, it was decided that where a creditor received from his debt- or a personal chattel in pledge as collateral security for the debt, he could not cause other chattels of the debt- or to be attached in an action for the same debt, without first returning the pledge. But no authority is cited in the case to sustain the decision, and it is believed that no. case can be found that will sustain it.

In the case of the South Sea Company v. Dancomb, 2 Strange, 919, it was held that where money is lent upon a pledge, the lender may have a remedy against the person of the borrower, unless there is a special agreement to stand to the pledge only.

And the better opinion is, that in case of a pledge, as-well as of a mortgage, the creditor may proceed against the debtor in the same manner as if there were no pledge, and is not bound to restore the pledge until the debt is paid. Yelverton, 178, Ralcliff v. Davis, note 1 ; 2: Starkie’s Cases, 72 ; 2 Gallison, 157 ; 7 Mass. Rep. 63, Carey v. Prentiss; 4 Mass. Rep. 247 ; 10 Johns, 482 ; 3 D. & E. 342 ; 1 Shoales & Lefroy, 173.

We are, therefore, of opinion, that the plaintiff is entitled to recover the sum, which the defendant received of Wells.

With respect to the money which the defendant received of Lyman, there is nothing in the case which shows that the plaintiff intended it, or that the defendant understood it, as a payment of any debt due from the plaintiff. The money must then be considered as received by the defendant as the agent of the plaintiff, and the defendant has no right to make any appropriation of it. without the consent of the plaintiff.

When a payment has been made generally, without any particular appropriation by him who pays, he who receives may appropriate. 3 Starkie’s Ev. 1091 ; 2 B. & C. 65, Simpson v. Ingham ; 1 Merivale, 604. But this is not a case of payment, and the rule does not apply.

It is, therefore, the opinion of the court, that the verdict must be set aside, and a verdict to be taken for the plaintiff for the amount of the two sums which the de* fendant has received.  