SECTION X.

OF THE TIME AND MANNER OF THE REDEMPTION OF THE PAWN.

terms

If the transaction is not a transfer of ownership, but a mere pledge, as the pledger has never parted with the general title, he may at Law redeem, notwithstanding he has not strictly complied with the conditions (a). If a clause is inserted in the original contract, providing that if all its are not strictly fulfilled at the time, and in the mode prescribed, the pledge shall be irredeemable, it will not be of any avail. For the Common Law deems such a stipulation unconscionable and void, as tending to the oppression of debtors (b). The Roman Law held such a stipulation a mere nullity (c), but the parties might agree that upon default in payment, the creditor might bona fide stipulate to take the pledge at a reasonable price. Whether the same principle exists in the Common Law does not appear to have been decided. But there is no doubt, that a subsequent agreement to that effect, or a waiver, after pledging, of the right to redeem, would be held binding between the parties (d). It is clear that by the Common Law, in

(a) Com. Dig., Mortgage, B.

cases of a

(b) Story On Bailments, sec. 345; Cortelyou v. Lansing,

2 Caines (U.S.) Cas, in Error, 200,

(c) 1 Domat, B. 3, tit. 1, sec. 3, art. 11.

(d) Story On Bailments, 345.

mere 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 pledgee. This doctrine is at least as old as the time of Glanville (a). If the pawnee does not choose to exercise his acknowledged right to sell, he still retains the property as a pledge, and upon a tender of the debt, he may at any time be compelled to restore it, for prescription, or the statute of limitations, does not run against it (b), though after a long lapse of time, if no claim for a redemption is made, the right will be deemed to be extinguished and the property will be held to belong absolutely to the pawnee (c). And it has been said that where no time of redemption is agreed, he that pawns goods may redeem during his life (d), but if he is outlawed, during his outlawry he cannot redeem them (e). And Story says (f), that where no time is fixed by the contract, there, upon the general principles of law, the pawnor has his whole life to redeem, unless he is previously quickened, as he may be, through a Court of Equity, or by notice in pais (g). It has been made a question whether, if the pawnor dies without redeeming, the right survives to his representatives, and in Ratcliff v. Davis (h) the Court distinctly said it did not, "for it is a

(a) Glanville, Lib. 10, cap. 6, 8, 1 Reeves Hist., 161, 163. (b) Kemp v. Westbrook, 1 Ves. 278, Com. Dig., tit. Mortg., B. (c) Story On Bailments, sec. 346, see ante, page 62. (d) Ratcliff v. Davis, Yelv. 178.

(e) S. C. Per Williams, J., 1 Bulst., 29. (f) Treatise On Bailments, sec. 348, see also Glanville, Lib. 10, cap. 6, 8.

(9) Cortelyou v. Lansing, 2 Caines (U.S.) Cas. in Error, 200. (h) Yelv. 178.

condition personal." But there have been cases in equity in which the right has been enforced in favour of the representatives, and this seems, according to modern opinions, the true doctrine (a); the more so as it has always been held that if the pawnee dies before redemption, the pawnor may still redeem against his representatives (b).

By the Roman Law, the pawnor, on redemption, was bound to reimburse the pawnee all necessary expenses and charges in keeping or preserving the pawn (c). And though no decision has been found in the Common Law directly on this point (d), the same rule would probably be adopted, should the question arise, for as necessary expenses must contribute to the advantage of the pawnor, by improving the pawn, or at least preserving it from injury, it would seem, on principle, to come within the second head of Lampleigh v. Braithwaite (e), by which any one who has adopted and enjoyed the benefit of a consideration, is held to have impliedly promised to have requested and promised in due form. But whatever be the rule as to ordinary expenses and charges in a case of mutual silence, it seems but reasonable that extraordinary expenses and charges which could not have been foreseen, should be reimbursed by the pawnor. As to expenses, not necessary, but useful, the rule of the Roman Law left them to be allowed or disallowed in

(a) Demandray v. Metcalf, Pre. Ch., 420; Vanderzee v. Willis, 3 Bro. C. C. 21.

(b) Com. Dig., Mortgage, B., Ratcliff v. Davis, Yelv., 178. (c) Dig. Lib. 13, tit. 7, 1. 8.

(d) Story On Bailments, sec. 357.

(e) Hobart, 105, 1 Smith's L.C., 5th edit., 135.

the discretion of the Court, according to circumstances. But the Common Law has not invested the Courts of Justice with any such discretion, or allowed the pawnee any such latitude of expenditure without the approbation of the pawnor, express or implied (a), though probably a jury would lean to an interpretation of acts from which a contract might be implied, which would render the practical effect very similar to that of the Roman Law.

We have already seen that it will depend on express contract, or on usage in trade, or between the parties, whether a pawnor coming to redeem is bound to pay a debt existing before the pawn was deposited (b).

Upon tender of the money secured by the pawn, by the pawnor or his executors, the property, notwithstanding the refusal, is reduced instantly to the pawnor, or his executors, without claim. But per curiam, the executor shall have action of debt for the money against the pawnor, for upon the redemption it remains a duty (c). And he may also bring trover and conversion for them (d). And in another case it was said that upon tender of the money, and refusal to deliver the pawn, an action of trespass upon the case lies (e), but this it seems was questioned at the time the judgment was given.

It was at one time supposed that where a pawnee refused, on tender of the money, to re

(a) Story On Bailments, sec. 358.

(b) Demandray v. Metcalf, Pre. Ch. 419, Gilbert, Ex. R., 104, Ex parte Deeze, 1 Atk., 228, 235, 237; ante pages 73, 74; Vanderzee v. Willis, 3 Bro. C. C. 21.

(c) Ratcliff v. Davis, Yelv. 178. (d) S. C., 1 Bulst., 30. (e) Per Dóderidge, J., Isaack v. Clark, 2 Bulst., 306, 309.

deliver the goods, he might be indicted as for a misdemeanour, because the goods being secretly pawned, it may be impossible for the pawnor to prove delivery in an action of trover, for want of witnesses (a); but this seems at least doubtful without some more conclusive evidence than the mere refusal of the pawnee to re-deliver. But there is no doubt, that if the pawnee wrongfully refuse to re-deliver the pawn, upon demand and tender in due time, he becomes at once a wrong doer, and will be liable, even though the pawn be afterwards lost or stolen from him under circumstances which would not otherwise have made him so. And though refusal by a general agent of a party, is not evidence of a conversion by that party, and it must be shown that the agent acted under the special direction of his principal (b), still, proof of a refusal by the servant of a Pawnbroker has been held to be evidence of a conversion by the master (c).

The Common Law doctrines as to the pawnor's right to redeem are recognized and limited by the Pawnbrokers' Act, which provides that goods pawned be redeemed within 12 months (d), or within 15 months if notice has been given to the pawnee in due time, and before the goods are sold (e). The Pawnbroker is bound to deliver back the goods on payment of the sum advanced thereon with interest,

(a) Per Lord Holt, Anon. 3 Salk. 267; Coggs v. Bernard, Holt, R., 529, 2 Salk. 521. (b) Per Gibbs, C.J., Pothonier v. Dawson, Holt, P.N.C., 383. (c) Jones v. Hart, 2 Salk., 441. (d) 39 & 40 Geo. 3, cap. 99, sec. 17. (e) Sec. 19.