liabilities, which do not attach to pawnees at Common Law. The Statute 23 Geo. III., cap. 48, sec. 5, declares that "all persons who shall receive or take, by way of pawn, pledge, or exchange, of or from any persons whomsoever, any goods or chattels for the repayment of money lent thereon, shall respectively be deemed Pawnbrokers within the intent and meaning of this Act, and shall take out a licence for the same accordingly." This obligation to take out a licence is extended by an Act of the present reign (a), passed to prevent the evasions of previous Statutes, practised by leaving-shop keepers. This Act makes the term Pawnbroker, with its consequent liabilities, extend to every one who shall keep a house, shop, or other place, for the purchase or sale of goods or chattels, or for taking in goods or chattels by way of security for money advanced thereon, and who shall purchase, or receive, or take in, any goods or chattels, and pay or advance, or lend thereon, any sum of money not exceeding Ten Pounds, with or under any agreement or understanding, express or implied, or which from the nature or character of the dealing may reasonably be inferred, that such goods or chattels may be afterwards redeemed or repurchased on any terms whatever.

(a) 19 & 20 Vict., cap. 27.

SECTION II.

WHAT MAY NOT BE PAWNED.

It follows from what we have already said, that though real estate may be mortgaged, it cannot properly be said to be pawned. For, as is said in Roman law, unde etiam videri potest, verum esse quod quidam putant, Pignus proprie rei mobilis constitui (a). And again, Pignus appellatum a pugno; quia res quæ pignori dantur, manu traduntur (b). And in our law, chattels, bills, choses in action, money, and all other forms of personal property, are proper subjects of pawn. Upon this proposition, however, certain exceptions have been grafted from motives of public policy. Hence an officer in the army or navy, or other officer of government, cannot assign or pledge his future accruing pay, or other remuneration connected with the right of the government to future services from him, because it is contrary to the honour, dignity, and interest of the state that its servants should be in danger of being reduced to poverty, by anticipating those resources which were intended to place them in a suitable condition of respectability, comfort, and efficiency (c). And on the principle of not encouraging litigation, assignments, (whether by way of pawn or otherwise,) which involve (b) Ibid.

(a) Dig. Lib. 50, tit. 16, 1. 238. (c) Story's Equity Jurisprudence, § 1040 1040f. Smith's Manual of Equity, 6th edit., 215.

are

Champerty or Maintenance, or which intended to convey only a naked right to litigate, will not be permitted (a). Independently of the Statutory liabilities of Pawnbrokers to restore stolen goods, it follows from the general principles of our law, that if the pawnor pledges goods which he has stolen, or otherwise improperly obtained, with a person who, at the time of making the advance, is aware of the manner in which they have come into the pawnor's possession, the pawnee cannot lawfully take the goods in pledge, nor can he retain them as against the true owner. But if stolen goods have been sold in market overt, and afterwards pawned with a pawnee ignorant of the fact that they have been so stolen, then, inasmuch as the pawnor had acquired a good title to them, the pawnee will not be bound to give them up to the true or original owner; at least, not until the thief has been prosecuted and convicted, in which case, several statutes provide, that the goods shall be given up, even by an innocent pawnee (b). And if he takes the goods in pledge from the thief, then, though the transaction were perfectly bond fide on his part, he cannot retain them; for, independently of the statutes, the cases at Common Law appear to exclude the custom of market overt altogether in dealings of pawn, for the custom only extends to a sale, and not to a pawn (c). In addition to instances of this nature, where the contract of pawn, in relation to

(a) Story's Equity Jurisprudence, § 1048 d. seq., Smith's Manual of Equity, 6th edit., 216, 218. (b) See post, Liabilities of Pawnees as to Stolen Property, (c) Jenkins, R., 83.

ordinary chattels, is vitiated by one or both of the parties to the contract having been guilty of acts in themselves unlawful, there are cases in which it is rendered invalid by statute, on account of the nature of its subject matter, when consisting of certain public stores, or of the materials and tools used in particular manufactures. The 25 & 26 Vict., cap. 64, (an Act for the better protection of Her Majesty's Naval and Victualling Stores,) after reciting that the existing Acts for that purpose are numerous and complicated, and that it is expedient to reduce into one Act and simplify and amend them, repeals such previously existing Acts, save as to penalties already incurred, and proceedings already pending. It then proceeds to enact (a) that from and after 29th July, 1862, any person knowingly receiving, possessing, keeping, selling, or delivering any Naval or Victualling Stores, marked in the manner defined by the Act, shall be guilty of a misdemeanor, and shall be liable to not more than one year's imprisonment. Knowledge of the marks upon the goods is presumed as against dealers in marine stores, or in old metals, until the contrary is shown (b), but not, it would appear, against Pawnbrokers; and the person accused will escape conviction on showing that he was lawfully in possession of the goods (c).

The annual Mutiny Act (d) contains very stringent provisions for the punishment of any person who shall knowingly detain, buy, exchange, or receive from any soldier or deserter, or any other (b) Sec. 8. (c) Sec. 9. (d) 27 Vict., cap. 3, s. 85.

(a) Sec. 7.

person acting for or on his behalf, on any pretence whatsoever, any arms, ammunition, medals, clothes, or military furniture, or any provisions, or any sheets or other articles used in barracks, provided under barrack regulations, or regimental necessaries, or any article of forage provided for any horses belonging to Her Majesty's service, or who shall have such things in his possession without being able satisfactorily to account for the same. The Marine Mutiny Act (a) contains similar provisions, and it refers more expressly than the former Act to persons who pawn any of the goods named. By section 48 of the Militia Law Amendment Act, 1854 (b), all persons are forbidden knowingly and wilfully to buy, take in exchange, conceal, or otherwise receive any militia arms, clothes, or accoutrements, or any such articles as are generally deemed regimental necessaries according to the custom of the army, being provided for the soldier and paid for by deductions out of his pay, or any public stores or ammunition, delivered for the militia, upon any account or pretence whatsoever. The Act for the establishment of a body of Naval Coast Volunteers (c) imposes a penalty on any person who shall knowingly and willingly buy, take in exchange, receive in pledge, or otherwise receive or conceal any arms, clothes, or accoutrements, or ammunition belonging to and provided for him under the Act; and a later Act for the establishment of a reserve force of Volunteer Seamen (d), contains similar provisions as to the (a) 27 Vict., cap. 4, sec. 89. (b) 17 & 18 Vict., cap. 105. (c) 16 & 17 Vict., cap. 73, sec. 19. (d) 22 & 23 Vict., cap. 40, sec. 19.