after stating the facts of the case generally, delivered the opinion of the court as follows
[Mr. Justice Lipsoomb not sitting]:It is insisted for the defendant in error, that, as the case is brought up by writ of error, we cannot look into the facts as upon appeal, or revise the judgment otherwise than as upon a writ of error at common law.
This, it is conceived, is not now an open question. It is be*128lieved to have been the uniform practice of the late supreme court, as «well as of this court,' to regard the writ of error, as recognized by our laws, only as another mode of bringing up the cause for revision as upon appeal. In Cheeks vs. Rogers [1 Texas R. 440], it was expressly decided by this court, that where the facts are properly presented in a case brought up by writ of error, they will be subject to the cognizance and revision of this court, in the same manner, and to the same extent, as in the case of an appeal.
■ In the case before us there is no statement of facts. But the contract is fully set forth in the answer, and the material facts are deducible from the allegations and admissions of the parties in their pleadings; particularly from the statements and admissions in the answer of the defendants. There was no necessity that the plaintiffs should have embodied, in a statement, the facts which are thus admitted of record. It is true, as insisted for the defendants, that every reasonable intendment is in favor of the judgment; but it is also true that there can be no intendment of fact in favor of a party, against his own allegations and admissions in the record. There being a verdict for the defendants, and no statement of facts, we must indeed presume, in support of the verdict, everything to have been proved by the defendants which they legally could have proved under the pleadings. ¥e must presume that there was proof of the truth of the matters set forth in the answer;’ but we cannot go beyond this. ' We cannot presume any matter to have been proved which was not averred. That would be to supply by intendment what must appear in the record.
The answers of the defendants being taken as- true, the question to be determined in this case is, do they show enough to support the judgment? By their own statements, were the defendants entitled to the verdict and judgment rendered in their favor?
The determination of this inquiry and the final disposition of this case must depend upon —
1st. The nature of the contract as disclosed by the answer.
*1292d. The rights of the parties, respectively, growing out of the contract; and
3d. The authority of this court to reverse and remand the -cause for a new trial, when the plaintiffs in error have already had two new trials allowed thein by the court below.
1. Respecting the first point, it is insisted for the plaintiffs that the contract is to be deemed a mortgage; and by the defendants that it is a conditional sale.
That it is not the latter, is evident from the express terms and clear import of the contract. It does not profess to pass the title in the first instance, but the possession and use only; whereas a conditional sale passes the title to the vendee, with a reservation to the vendor of a right to re-purchase the property at a fixed price and specified time. [7 Cranch, 218; 4 Kent’s Com. (3d ed.) 144.]
Whether the contract is evidence of a mortgage, or a pledge only, will be apparent by reference to the legal definition of each, and the distinction which is recognized by the law between a mortgage and a pledge of personal property.”
“ The former is a conditional transfer or conveyance of the property itself; and if the condition be not performed, the whole title vests absolutely at law, exactly as it does in the •case of a mortgage of lands. The latter only passes the possession, or, at most, a special property only to the pledgee, with a right of retainer until the debt is paid, or the other engagement is fulfilled.” [2 Story’s Eq. sec. 1030; 4 Kent’s Oom. 128.]
“A mortgage of goods differs from a pawn or pledge in this: that the former is a conveyance of the title upon condition” [4 Kent’s Oom. 138], and it may be valid without actual delivery. [Id.] “ A pledge or pawn is a deposit of goods redeemable on certain terms.” [Id.] “ Delivery is essential to ■a pledge.” [2 Caines’ Oas. in Er. 206; Yelverton, 197, note 1, Am. ed.; 2 Yes. Jr. 378.]
A mortgage, it has been said, is a pledge, and more; for it is an absolute pledge, to become an absolute interest if not redeemed at a certain time; a pledge is a deposit of personal *130effects, not to be taken back but on payment of a certain sum, by express stipulation or the course of trade made to be a lien/ upon them. [2 Ves. Jr. 378.] In the case of a mortgage, the legal property passes with a condition of defeasance; in that of a pledge, the general property does not pass, but remains with the pawnor. [2 Caines’ Cas. in Er. 206.]
It is this characteristic of the contract in the present case which distinguishes it from u mortgage, and brings it within the definition of a pledge. It does not pass the general property to the pledgee,' but the possession and use only. The-mortgage and the pledge or pawn of goods have, however, it has been remarked, generally been confounded. [Yelverton, 179, n. 1, Am. ed. by Metcalf.] They are, indeed, in most respects, subject in equity to the same rules; the mortgage-being considered in equity but a pledge or security for the payment of the debt, or the discharge of the other engagements, for which it was originally given. [2 Story’s Eq., secs. 1013, 1014, 1015.]
Having determined the character of the contract to be that of a pledge, in the present case, it becomes essential to ascertain—
2. What are the respective rights of the parties under this-contract? And upon this point, it is insisted for the defendants in error, that, upon the failure of the plaintiffs to pay the debt at the time stipulated, the right of property, by the law of the contract, considered either as a pledge or a mortgage,, became absolute in Townsend; at all events, that the stipulation in the contract to that effect is valid and must be adhered to.
It is clear, says Story [Story on Bailments, sec. 346], by the-common law, that in cases of pledge, if a stipulated time is-fixed for the payment of the debt, and the debt is not paid at the time, the absolute property does not pass to the pawnee; and this doctrine is as old as the time of Gflanville. [2 Gflan-ville Lib. 10, ch. 6; 2 Caines’ Cas. in Er. 200; Yelv. 178.]
Kent asserts the same as having been the doctrine of^the common law; and he adds, “the pawnee was obliged to have-xecourse;to process of law to sell the pledge; and until uthat *131was done the pawnor was entitled to redeem.” [2 Kent’s Com. 581; 2 Story’s Eq. sec. 1032.]
But the English law now is, that, when the debt is due, the pawnee has the election of two remedies. He may have a judicial sale under a decree of foreclosure; or he may sell without judicial process, upon giving reasonable notice to the debtor. For the pawnee is not now.bound to wait for a sale under a decree of foreclosure, as he is in the case of a mortgage of land. [2 Kent’s Com. 581.] But without any bill to redeem, the creditor on a pledge or mortgage of chattels may sell at auction, on giving reasonable opportunity to the debtor to redeem, and apprising him of the time and place of sale. [4 Kent’s Com. 139; 2 Story’s Eq. sec. 1031.]
The notice to the party in such cases is, however, indispensable. [1 Browne (Pa.), 176; 2 Caines’ Cas. in Er. 200; 2 Story’s Eq. 1033, n. 4, 3d ed.j And the creditor (says Kent) will be held at his peril to deal fairly and justly with the pledge, both as to the time of the notice and the manner of the sale. . [2 Kent’s Com. 583.]
.Respecting the stipulation in this contract, that, upon failure to make prompt payment, the title to the boy should become absolute in Townsend, the law is well settled that it can be of no effect.
Every agreement, says Kent, preventing the right of redemption in mortgages of chattels, as of lands, would no doubt be equally condemned in the English law. [Id.]
If, says Story, a clause is inserted in the original contract, providing that if the terms of the contract are not strictly ful-tilled at the time and in the mode prescribed, the pledge shall become irredeemable, it will not be of any avail; for the common law deems such a stipulation unconscionable and void,' upon the ground of public policy, as tending to the oppression of debtors. The civil law treated a similar stipulation in the same manner, holding it to be a mere nullity. [Story’s Comm. Bailments, sec. 345; Hart vs. Burton, 7 J. J. Marsh. 322.]
According to those principles, the stipulation, intended in the present case to defeat the right of redemption, must be re*132garded as wholly ineffectual to accomplish that end, and inoperative to vest in the pledgee an absolute right to the property.
It is thus apparent, from an application to the case of the ascertained principles of the law upon this subject, which we have freely extracted from the pages of Kent and Story, that, ixpon the failure to pay the money at the time specified, the' right of property in the boy in question did not vest absolutely in the defendant, Townsend, but he continued still to hold him as a pledge; and the right of the plaintiffs to redeem still subsisted, and continued up to the period of the commencement of this suit, unless defeated by the sale of the boy by Townsend to Moore; and hence the effect of this sale necessarily becomes the subject of inquiry.
It is not pretended that this was a public sale at auction, or that the plaintiffs had any notice of it whatever. We are even now uninformed as to the time and place at which this sale was made. The defendants have not seen proper to disclose the facts connected with it; because, we must suppose, they deemed that silence upon that subject would most conduce to their advantage. They leave the circumstances attending the sale entirely out of view in their answer, insisting on their understanding that by the law of the contract the property became absolute in Townsend.
Conduct like this does not comport well with the rules which the pawnee was bound to observe in the sale of the tiling pledged. These, we have seen, require that the sale be a public sale; that due notice be given to the debtor of the time and place of sale; and that the creditor, at his peril, shall deal fairly and justly, both as to the time of the notice and the manner of the sale. If, says Story, the pledgee should undertake to make a transfer of the pledge to his own creditor, as if he was absolute owner, in such a case he would bo guilty of a breach of trust, and his creditor would acquire no title beyond that held by the pawnee. Indeed, the only question, he says, which would seem to admit of controversy is, whether the creditor would be entitled to retain the pledge until the original debt was discharged; or whether the owner *133might recover the pledge, as if the case was a naked tort, without any qualified right in the first pledgee. [Story on Bailments, sec. 321.]
At most, Moore, in this case, could but acquire the title of his vendor. Ne could acquire no greater or better title, according to the maxim, “ Nemo plus juris ad alium transferre potest quam ipse haberet.” [Id. sec. 328.] His purchase was made, as appears by his own admissions, with a full knowledge of the facts as disclosed in the answer of his co-defendant, and he certainly can occupy before the court no better position than the latter.
The rights of the plaintiffs, therefore, were in no way impaired or affected by the sale in question.
But it is insisted that the action cannot be maintained, on account of the failure of the plaintiffs to make a tender of the debt before the institution of the suit.
However this might have been before the sale and claim of absolute property by the defendants, it is clear that these acts dispensed with that necessity.
If, says Story, the pledge has been sold by the pledgee without any proper notice to the former, no tender of the debt due need be made before bringing an action; for the party has incapacitated himself to comply with his contract to return the pledge. And the same rule applies where the pledgee dispenses with a tender, as if he refuses, under any circumstances, to restore the pledge [id. sec. 439]; and a fortiori where, as in this case, he claims the absolute property in the pledge. The action may be brought, in these cases, without a tender, and the pledgee may recoup his debt in the damages. [Ibid.']
3. In view of the whole case as presented in the record, and considered in reference to every objection which has been urged on behalf of the defendants, we are brought to the conclusion that the law of the case is with the plaintiffs; that they were entitled to recover upon the facts disclosed by the defendants, themselves, in their answers; that the verdict is manifestly against law, and that it ought to be set aside and a new trial awarded; provided we are authorized to remand the cause for *134a new trial, when two new trials have already been allowed the plaintiffs by the court below. And this is the only remaining inquiry. ' ■ *
There is no novelty, and, in reference to the authorities, I am warranted, I think, in saying there can now be no difficulty in the determination of this question. The right to remand a cause under circumstances like the present has, it is believed, been uniformly maintained in every country where, as with us, the right of trial by jury is guarantied and secured by the constitution and laws.
In Kentucky it is held that the act of IT96 of that state, which declares that “ not more than two new trials shall be granted to the same party in the same cause,” does not so operate as to prevent the court of appeals from re-examining the questions of law, and reversing and remanding the cause for a new trial after three or more verdicts for the same party. [1 Dana, 62.] The same point was also decided in Burton vs. Brashear [3 Marshall, 278].
In the case of Means vs. Moore [3 McCord, 282], and in various other cases, the court of appeals of South Carolina have held that they will always exercise a controlling power of granting new trials; and that so long as the jury will continue to find contrary do law, they will continue to grant new trials. In the'last cited ease the court say: “The right to control a verdict, under such circumstances, has always been claimed and maintained in this and in every other country where the laws have been properly administered.” [Id. 388; 1 Bay, 269; 2 id. 23, 131; 2 McCord, 26; 3 id. 132; 1 Johns. Cas. 336; 10Mer-ger, 499; 1 Meigs, 163.]
Authorities might be multiplied to the same effect. The court, indeed, must exercise this right, or give up the law to the will of the jury.
The boundaries of jurisdiction between the court and jury are well defined; and the value of this venerated institution of trial by jury must depend upon keeping it within its ancient recognized and well ascertained limits.
The court will never trench upon the right of the jury tore-*135spond to questions of fact; but it must not be forgetful of its own duty to respond to questions of law. It would be as much an usurpation in the jury to undertake the exposition of the law, as in the court to wrest from them the trial of the fact.
In the case before us, every point submitted presents a question of law. Hone .others are contested. And upon few subjects is the law better settled or more clearly defined. There can be no doubt that the verdict is contrary to law. And unless we are prepared to concede that a given number of unauthorized and illegal verdicts can indeed change the law of the land, the line of our duty cannot be mistaken.
"We are of opinion that the judgment be reversed, and the cause remanded for a new trial.