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SECTION XII.

RIGHTS AND LIABILITIES OF THE

PAWNEE AFTER THE SALE.

When once the pawnee has obtained an entire satisfaction, he can proceed no further; and, if there is any surplus, it belongs to the pledger (a). And the pawnee's right is strictly confined to a sale; for he cannot appropriate the property to himself upon the default of the pledger (b); for it is certain that at Common Law, he cannot alienate the property absolutely, nor beyond the title actually possessed by him, unless in very special cases (c). Where the pledge is mere current coin, or a negotiable security, the pawnee may sue for and receive the money due thereon, in his own name. But unless in a very extreme case, he cannot compromise with the parties for less than the sum due, or if he does, he will be compelled to account to the pledger for the full value (d). By the Common Law, he may deliver over the pawn into the hands of a stranger for safe custody, without consideration, or he may sell or assign all his interest in the pawn, or he may convey the same interest conditionally to · another person, without in either case destroy

(a) Story On Bailments, sec. 314, 1 Domat, B. 3, tit. 1, sec. 1, art. 29, sec. 3, art. 12, Bac, ab., tit. Bailment, B.

(b) Story On Bailments, sec. 318.
(c) Hartop v. Hoare, 3 Atk. 44, 52, 53,
(d) Story On Bailments, sec. 321.

ing or invalidating his security (a). And he must render an account of all income, profits and advantages derived by him from the pledge, when such an account is within the scope of the Bailment, charging against these, the expenses formerly mentioned (b). Pothier thinks that the duty of the pawnee goes further, and that he is bound to account for all the profits and income which he might have received from the pledge, but for his own negligence (c). This would, doubtless, be true in the Common Law, in all cases where there is an implied (or express) obligation to employ the pledge at a profit. As if there is a pledge of money, and it is agreed that it shall be let out at interest by the pawnee, and he has neglected his duty, or if the pledge is to be employed in its usual business, upon profit; as a ferry-boat at a ferry, or a coach and horses in the customary carriage of passengers (d). It seems unlikely, however, that the Courts would, without express agreement, or irresistible implication, apply the doctrine of trusteeship (e) so strictly between pawnor and pawnee as this would involve. And though the latter must account for the profits of the pawn he has employed, he will have an allowance made to him for his loss

(a) Ratcliff v. Davis, 1 Bulst. 29; see also McCombie v. Davis, 7 East, 5; Story On Bailments, sec. 324, citing Bowman v. Wood, 15 Mass. (U.S.) R., 534; Garlick v. James, 12 Johns (U.S.) R., 146.

(b) See ante, page 74.

(c) De Nantissement, n. 36, Ayliffe, Pand. B. 4, tit. 18, p. 533.

(d) Story On Bailments, sec. 343.

(e) As laid down in Attorney-General v. Alford, 4 D.G., M. & G. 843, and cases there cited, Knott v. Cottie, 16 Beav., 77, 80.

of time, skill, and trouble. As in Brown v. Litton (a), where a captain having died, leaving 800 dollars on board his ship, which he intended to invest in trading on that voyage, Lord Keeper Harcourt allowed the mate (who had succeeded to the command), a salary for his pains and trouble in the management thereof. And also as in Brown v. De Tasted (b), where Lord Eldon allowed a surviving partner proper allowances for his management of the business (c).

If at the time when the pledger applies to redeem, the pledge has been sold by the pledgee, without any proper notice to [or contract by] the former, no tender of the debt due need be made before bringing an action therefor; for the party has incapacitated himself to comply with his contract to return the pledge (d). And the same rule applies where the pledgee dispenses with a tender; as if he refuses, under any circumstances, to restore the pledge. But if an action is brought, the pledgee may recoup his debt in the damages. Subject to the rights of the pledgee, the owner may sell or assign his property in the pawn; and in such a case, the vendee will be substituted for the pledger, and the pledgee will be bound to allow him to redeem, and to account with him for the pledge and its proceeds. And if the pledge has

(a) 1 P. Wms., 140, 10 Mod. 20.

(b) Jac., Ch. R., 284.

(c) See also Crawshay v. Collins, 15 Ves. 218; 1 J. & W. 267, 2 Russ. 325; Featherstonhaugh v. Fenwick, 17 Ves., 298; Coke v. Collingridge, Jac. Ch. R., 607; Wheatcroft v. Hickman, 9 C.B. (N.S.), 47, 8 H. L. Ca., 268; 30 L. J. (N.S.), C.P. 125.

(d) Cortelyou v. Lansing, 2 Cain. (U.S.) Cases in Error, 200; see also Cutter v.Powell, 6 T.R., 320, 2 Smith's L.C., 1.

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suffered injury by the pledgee's default, the owner, or his representative, is entitled to a recompense in proportion to the injury sustained, unless such injury shall have arisen from accident, or from the natural decay of the pledge (a).

This right of the pawnor to any overplus, involves the corollary that if the things pawned are insufficient to pay the debt, or other duty, the deficiency continues a personal charge on the debtor, or other contracting party, and may be recovered accordingly, because, although the security ceases, yet the duty remains, inasmuch as the money lent is not repaid. And in a case where the opposite view was insisted on by the counsel for the defendant, the Court, after proof of many particulars to induce a belief that in these loans no regard was had to the personal security, left it to the jury upon this point, that where money is generally lent upon a pledge, the law will not deprive the lender of his remedy against the person; and that to discharge the person of the bor rower, there must be a special agreement to stand to the pledge only (b). And the pledgee may release one of the things pawned, without affecting his right to the others.

The Pawnbrokers' Act adopts this Common Law doctrine that the pawnor has a right to any surplus that is produced by the sale of the pawn, after satisfying the amount of the pawnee's claim, by the provision we have already quoted (c), compelling the Pawnbroker

Story On Bailments, secs. 349, 350, 351.
South Sea Co. v. Duncomb, 2 Str. 919.
Ante sec. xi., pp. 158 et seq.

to keep an account of all sales under the Act, and also by a subsequent part of the same section (a), which provides that in case pawns on which more than 10s. have been advanced shall be sold for more than the principal and interest due thereon at the time of sale, the Pawnbroker shall pay the overplus on demand by the pawnor or his representatives, if demand be made within three years after such sale, the necessary costs of the sale being first deducted. And the pawnor or his representatives shall be permitted to inspect the entry required by statute to be made, on payment of one penny, and on refusal to allow such inspection to the pawnor, or his representatives, who shall produce the needful documentary evidence of the character in which they appear, or if the entry be not made, or the sale be not bona fide, or the payment of overplus, on demand, be refused, the Pawnbroker shall be subject to a penalty of £10 and treble value, leviable by distress under the hands of two Justices.

(a) 39 & 40 Geo. 3, cap. 99, sec. 20.

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