SECTION XIII.

PERSONAL LIABILITY OF PAWNOR.

The possession of the pawn does not suspend the right of the pawnee to proceed personally against the pawnor for his whole debt, or other engagement, without selling the pawn, for it is only a collateral security, and to discharge the person of the borrower, there must be a special agreement to stand to the pledge only (a). If the pawnor through default or conversion of the pawnee, has recovered the value of the pawn in an action, still the debt remains, and is recoverable, unless in such prior action it has been deducted (b). But by the Roman law the pawnee could not be forced to commence a personal suit against the pawnor, for he might rely on the security of his pledge (c). Mr. Cobbett, however (d), cites a case from a M.S. Year Book, temp. Edw. 1, in Lincoln's Inn library, in which a defendant in an action of debt for money lost, pleaded that she had deposited jewels with the plaintiff as a security for the repayment of the loan, which jewels the plaintiff had not returned. The Court refused to give judgment for the plaintiff, saying that they had no power to award restitution of the deposit. And in a case before

(a) South Sea Co. v. Duncomb, 2 Str. 919; Bac. Abr., tit. Bailment, B.; Story On Bailments, sec. 315, and cases there cited. (b) Ratcliff v. Davis, Yelv. 179. (c) Cod. Lib. 8, tit. 14, 1. 20, 24; Story On Bailments, (d) Cobbett On Pawns, 46.

sec. 316.

Lord Redesdale, in 1803 (a), the defendant, a mortgagor, moved for an injunction to restrain the plaintiff, a mortgagee, from proceeding at law on the bond, while suing in equity for a foreclosure. The deeds had got into the possession of the mortgagee's wife, who was at variance with her husband, and her attorney claimed a lien upon them. The Lord Chancellor said that though a mortgagee had a right to proceed on his mortgage in equity and his bond at law at the same time, the mortgagor also had a right not to be obliged to pay the money on his bond, if he is in danger of not getting back his title deeds; for the mortgagee can have nothing but on condition of reconveying and giving up the title deeds which he has received. His lordship granted an injunction to stay proceedings at law, and the money to be paid into the bank to remain until the title deeds were secured and a re-conveyance had; the defendant to pay the costs. And Story (b) mentions a case in Massachussetts (c) in which it was held that if a pawnee causes the pawned goods to be attached in a personal suit against the pawnor for the very debt for which they were pledged, the right to the pledge is gone; though not, it seems, when the suit is for other debts (d); and a third case in which a pawnee was held to have no right to attach other property of the pawnor for the debt, without first returning the pawn to him (e).

(a) Schoole and Wife v. Sall, 1 Schoal and Lefroy, 177. (b) Treatise On Bailments, sec. 366. (c) Swett v. Brown, 5 Pick. (U.S.) R. 178. (d) Townsend v. Newell, 14 Pick. (U.S.) R. 332. Cleverly v. Brackett, 8 Mass. (U.S.) R., 150.

The case before Lord Redesdale, however, only shows that the mortgagee's (and by analogy, the pawnee's) right to sue personally, while retaining the thing mortgaged or pledged, may sometimes be qualified by equitable circumstances, and the cases cited by Story are expressly mentioned as peculiarities in the local Jurisprudence of Massachussetts (a). It may therefore be regarded as clear, that the possession of the pawn is not, of itself, a bar to proceedings against the pawnor, on his personal liability to the pawnee. And as we have already shown (b) that a pawnee is not liable for the loss of the pawn, unless negligence be proved, it follows that though, if a creditor takes a pawn, he is bound to restore it on payment of the debt, yet, if his care in keeping it be exact, and the pawn be lost, he shall be excused, for there is no default in him. And if the pawn be lost, the pawnee has still his remedy for the money; for the law requires nothing extraordinary of the pawnee, but only to use an ordinary care for the restoring of the goods (c). And a fortiori, if, after a sale has been effected, the produce of such sale is insufficient to satisfy the debt, the pawnor becomes personally liable for the residue unpaid; because, though the security ceases, yet the duty remains (d).

(a) Story On Bailments, sec. 366.

(b) Ante, sec. viii., pp. 96 et seq. (c) Coggs v. Bernard, Ld. Raym. 909, 1 Smith's L. C., 5th edit., 171.

(d) Bac. Abr., Bailment, B.; South Sea Compy. v. Duncomb, 2 Stra., 919; Coggs v. Bernard, ut supra.

SECTION XIV.

EFFECT OF THE DEATH OF PARTIES.

It has been said that where goods are pawned generally, without any day of redemption, and the pawnor dies, the pawn is absolute and irredeemable; but that if the pawnee dies, it is not so (a). In the case of Ratcliff v. Davis (b), to which we have so frequently referred, it was said that though the person that takes the pawn delivers it over to a stranger, yet if the pawnee dies, the tender of the money must be to his executor and not to the stranger, for the delivery makes but the naked custody of it, and if the delivery had been on consideration, it does not alter the case, for the stranger is not privy to the first contract of pawning, nor to the condition. More recent decisions, however, show that the right to redeem is not lost by the death of the pawnor, but goes to his personal representatives. As where A. borrowed £200 on pawn of some jewels and plate worth about £600, taking a note from the pawnee, and afterwards borrowed at several times three other sums of money of the pawnee, for which he gave his note, without referring to the jewels. The executors were admitted to redeem, but only on payment of the money due on the notes as well as on the Pawn (c). And in Vanderzee

(a) Noy 137, 3 Salk., 267.

(b) Cro. Jac., 244, Yelv. 178, 1 Bulst., 29.
(c) Demandray v. Metcalf, Prec. Ch,, 419.

v. Willis (a), the executrix of a deceased pawnor was allowed to redeem securities pledged with the defendants, the testator's bankers. By the Pawnbrokers' Act, the right of a deceased pawnor to redeem, and the liability of a deceased pawnee to suffer redemption, are both continued to their executors, administrators, or assignees (b). The wording of this section would seem to give to the representatives the rights of the pawnor to a copy of the duplicate under sec. 16; and the Pawnbroker is bound to account, under sec. 20, to the pawnor's executors, administrators, or assignees, as well as to the pawnor himself, for any surplus remaining after the sale of the pawn. It may therefore be taken, that the personal representative may sue on a contract of pawn, as on all other contracts made with the deceased, of which the breach occasions an injury to the personal estate, whether broken in his life-time, or subsequently to his death (c), and in like manner, the personal representatives are liable as far as they have assets, on [the contract of pawn, as on other] contracts of the deceased, broken in his life-time (d), and likewise on such as are broken after his death, for the due performance of which his skill or taste was not required, and which were not to be performed by the deceased in person, for the executors, as was said by Parke, B. (e), are in truth contained in the

(a) 3 Brown, C. C. 21.

(b) 39 & 40 Geo. 3, cap. 99, sec. 14.

(c) Judgm., 2 C. M. & R., 596, 597, Webb v. Cowdell, 14 M. & W., 820.

(d) Morgan v. Ravey, 6 H. & N., 265, 276.

(e) Wills v. Murray, 4 Ex., 866.