¶1delivered the opinion of the Court. Upon the facts reported, the plaintiff, at the trial, rested his case on two grounds :
¶21. That the defendants did not sell the coffee consigned to them at the limit, in September, 1833, when they might have so done. And 2. That they afterwards, and after having commenced an action to recover back their advances, sold the same below the limit.
¶3In answer to the first ground of action, the defendants offer ed in evidence the judgment they recovered in the former suit, with the proof that the same matter now in dispute had been submitted to the jury in defence of that suit.
¶4To the admission of this evidence the plaintiff’s counsel objected, on the ground that the evidence in the former action had been improp'erly admitted. If this was so, and the judgment had been pleaded as an estoppel, or had been offered as conclusive evidence against the plaintiff on this point, the objection might have been well founded. But as the judgment was not offered as conclusive evidence, and was not so considered, we have no doubt that it was competent evidence, with the accompanying proof, to be left to the jury with the other evidence in the case, although it could now be made to appear that the evidence admitted in defence in the former action was not legally and properly admitted.
¶5We have however no doubt that it was legally admitted, and that the present plaintiff had the right to make the defence he *45was allowed to make in the former action. We consider this point settled by the case of Dodge v. Tileston, 12 Pick. 332.
¶6The rule adopted in that case is a salutary rule, as it tends to prevent circuity or multiplicity of actions, and the accumulation of costs. It is indeed difficult to imagine a case in which it can operate to the prejudice of either party ; not to the defendant, for it is optional with him to make such a defence or not; nor to the plaintiff, for generally to him it would operate beneficially, by saving him from the expense of a cross action. The only objection that can be made, is, that the plaintiff may be surprised by such a defence. But the Court will take care that he shall not be prejudiced by surprise. And he cannot well be, unless through his own negligence, for he has the right to require the defendant to give notice of all matters he intends to rely on in his defence.
¶72. In answer to the second ground of action, namely, that the coffee was sold below the plaintiff’s limit, the defendants proved, that in January, 1833, they wrote to the plaintiff, complaining of being kept so long under advances, and requiring repayment or further security ; and that at different times after-wards, and especially in June, 1834, they demanded payment of a portion of the advances, which was not complied with. In that month the defendants commenced their action for the repayment of their advances, and as additional security, caused the present plaintiff’s property to be attached to the value of $3500. The plaintiff then requested the defendants to delay the sale of the coffee until the fall sales of that year, and it was accordingly delayed until that time, when it was sold.
¶8According to this evidence, there can be no doubt that the defendants had a right to sell the coffee, and that the verdict is fully sustained by the evidence. It was moved to set aside the verdict, as against the weight of the evidence ; but this motion has been waived, and the plaintiff’s counsel rely solely on the exception taken to the instructions to the jury. The jury were instructed, “ that a commission merchant, having received goods to sell at a certain limited price, and made advances upon such goods, had a right to reimburse himself by selling such goods at the fair market price, though below the limit, if the *46consignor refused, upon application and after a reasonable time, to repay the advances.”
¶9The rule of law thus laid down, appears to the Court to have been stated with perfect accuracy, and with all the qualifications which are applicable to the defendants’ right of sale, as claimed by them on the evidence.
¶10The law appears to be well settled, both in England and in .this country, that the pledgee of personal property, after the debt becomes due, may sell without a judicial process and decree of foreclosure, upon giving reasonable notice to the debtor to redeem.
¶11It was so decided in Tucker v. Wilson, 1 P. Wms. 261, and in Lockwood v. Ewer, 2 Atk. 303. The same rule of law was laid down in De Lisle v. Priestman, 1 Brown’s Penn. R. 176, and in New York by Chancellor Kent, in Hart v. Ten Eyck, 2 Johns. Ch. R. 100, and again in his Commentaries ; 2 Kent, (3d edit.) 582.
¶12The principle thus settled seems to be founded in good sense, and may be essentially necessary to enable the pledgee to avail himself of his pledge, in a reasonable manner, for the discharge of his demand.
¶13In the present case the defendants were not merely pledgees, but they were expressly authorized to sell the property consigned to them, and thereby to reimburse themselves for'their advances. There was no time limited withip which the sale was to have been made. The defendants were, therefore, nound by their acceptance of the consignment, to wait a rea- 1 sonable time, if the sale could not be made for the price limited, although by the delay their security might be impaired.
¶14But after such a reasonable time had elapsed, and a demand had been made upon the plaintiff to repay the money advanced, and he had refused so to do, he had no further power, by any principle of law or justice, to control the defendants’ right of sale to their prejudice. Such a power would be inconsistent with the understanding of the parties as it must be presumed to have been when the advances were made ; and it would enable the plaintiff to impair the defendants’ security, at his own will and pleasure for an unlimited time, if he were disposed so to do. To sanction such a right, would operate injuriously on *47the interests of consignees, and would check the continuance of those large advances, by the aid of which a flourishing trade has been carried on, for years past, to the great profit of the mercantile community. For although such advances may sometimes lead to overtrading, and may induce individuals to venture upon rash speculations, yet it cannot be doubted, that on the whole they have contributed to the increase of the wealth and prosperity of the country. The principle, therefore, involved in this case is of great importance, and has been considered by the Court with great care.
¶15In respect to the argument in relation to the attachment, we do not think it can in any way affect the defendants’ right of sale. The attachment was made for the purpose of strengthening the defendants’ security. And they attached property to the amount which was supposed sufficient, with the proceeds of the sale of the coffee, to repay their advances, and no more. And this was done so as not to injure or embarrass the plaintiff by a heavy attachment. If the defendants had attached property to the full amount of their advances, while they continued to hold the property consigned, the plaintiff might well complain. If the plaintiff was 'able to secure the defendants for their whole advances, he ought to have offered the security voluntarily, if he wished to control the defendants’ right of sale. But it does not appear that he did wish the sales to be delayed oeyond the fall sales of 1834, and the coffee was not sold until that time.
¶16Under these circumstances, we cannot think that the plaintiff has any just cause to complain of the insufficiency of the attachment to secure their advances. The defendants alone suffer from the insufficiency, for by the fall of-the price of the coffee, there is, as we understand, a balance still due to them which remains unsecured. But however this may be, we are of opinion that the defendants did not by their attachment relinquish their lien on the coffee and their right of sale, and that consequently they are entitled to judgment on the verdict.