The opinion of the Court was delivered by
Moses, C. J.To sustain the action of trover, one must have-the *444right of property with the right to possession. If these unite in him, and conversion is proved, a recovery must follow.
It is conceded in the argument that bank notes may be the subject of this action. The authorities, both in England and our own State, sustain that conclusion.
The objection .to the plaintiffs’ right of recovery was put, both by the Judge below and the counsel for the defendant in his argument here, upon the ground that when demand was made for the parcel of South-western Railroad Bank bills, they failed to show that they paid any money or made any legal tender of the four thousand dollars or its value.
The action was not brought for the recovery of a debt, but for damages for the conversion of specific chases in action.
If the bank had disposed, by sales, of the notes left with them, the plaintiffs would have been at liberty to waive the tort and sue for money had and received to their use. The gist of the action was the conversion, and there was, therefore, no necessity, on the part of the plaintiffs, to pay any money, or make any legal tender, to entitle them to a restitution of the bills in the hands of the defendant. ' The bank did not consider that the agreement imposed a liability on the plaintiffs, as for a debt due. The notes they left were of greater value, as shown by the evidence, than those they received. The refusal to return the South-western Railroad Bank bills was not because the notes they were offering, when they claimed their own under the agreement, did not constitute a legal tender.
Even if there had been a debt due, the objection to the character of the tender was waived when the refusal to accept was not put upon that ground. — 5 Rob. Prac., 942.
The transaction amounted to a pledge or pawn, which, in the common law understanding of it, Mr. Justice Story, in his work on Bailments, Section 286, defines “to be a bailment of personal property as a security for some debt or engagement.”
The testimony discloses the following facts: In consideration of the defendant delivering to the plaintiffs, for their use, the sum of four thousand dollars in Confederate Treasury notes, they left with the defendant that amount in its own bills, as security for the return of the like sum in the said notes in eight or ten days. Within the time limited, one of the plaintiffs called at the bank, offered the four thousand dollars in the same currency which they had received, and asked for their parcel of bills. The President directed the Teller to deliver the package, and receive the four thousand dollars *445Confederate notes, as bad been previously agreed. The Teller asked the party who had so called, as a favor to him, as he was busy, to let the matter stand until the next day. This was assented to, and he returned the following day, when the Cashier, (who did not deny the agreement,) after some conference between them, refused, on demand, to restore the bills so left, or to receive the four thousand dollars in Confederate money. No entry of the transaction was made in the books of the bank, either as a charge or a credit, although the plaintiffs were dealers with it.
The whole legal title, by a pledge or pawn, does not pass conditionally, as in the case of a mortgage; but the pledgee has only a special property during the time, and for the objects' for which it is pledged. — Story on Bailments, § 287; 2 Parsons on Contracts, 112.
Lord Holt, in Baldwin vs. Cole, 6 Mod., 212, says: “The very denial of goods to him that has a right to demand them, is a conversion; for what is a conversión but an assuming upon one’s self the right of disposing of another’s goods; and he that takes upon himself to detain another man’s goods from him, without a cause; takes upon himself the right of disposing of them.”
An assertion of right inconsistent with that of the owner to exercise dominion over his property is a conversion. — 6 Bae. Abr., 677.
A demand and refusal is presumptive proof of a conversion, because it is the assertion of a control of property inconsistent with the general dominion over it which belongs to the owner.
Where personal property is held under pledge, and the full demand be tendered to the holder and he refuses it, the refusal to deliver on such tender is evidence of conversion. — 1 Rol., 1, 50; 10 Coke, 56, C; 1 Comyn’s Digest, 1, Title “E,” 439; 2 Parsons on Contracts, 274; Ratcliffe vs. Vance, 2 Mill’s C. R., 241.
We do not perceive in the case anything which forbids the application of the rules which strictly pertain to the action of trover, nor can we discover how their force is weakened, because the transaction was with a bank. The liability of the defendant did not arise out of a dealing with a bank in the ordinary course of its business. It was a matter entirely outside of the usual routine of its operations. It is,'nevertheless, bound, if loss ensues from its tortious acts. It made no difference that the article pledged was money, or its own bills, which represented it. The same principle is to govern as if the article deposited had been a watch or a jewel-.
The obligation which devolved on the bank was properly under*446stood by its President when he directed the return of the package of bills to the plaintiffs, which they had left, and the acceptance of the Dotes which they tendered.
It is ordered and adjudged, that the non-suit be set aside, and the case remanded for trial.
Wright, A. J., concurred, (a.)