special property of the pawnee, it does not follow that it is also necessary for its continuance. The effect of the Civil law is stated by Story (a): "It enabled the pawnee to assign over or to pledge the goods again to the extent of his interest in, or lien on, them, and in either case the transferee was entitled to hold the pawn until the original owner dis. charged the debt for which it was pledged. But beyond this the (second) pledge was inoperative, and conveyed no title, according to the known maxim, Nemo plus juris ad alium transferre potest quam ipse habet." And there are strong authorities in England the same way. In Morse v. Conham (b) it is said, "the pawnee hath such an interest in the pawn as he may assign over, and the assignee shall be subject to detinue if he detains it upon payment of the money by the owner; and though one judge dissented on this very point, that circumstance proves that there was no mistake of the reporter, nor oversight by the majority, but that it was a deliberate decision." After referring to numerous authorities (c), his Lordship examined the cases in which a party with a limited interest had been held to have determined his special property, so as to enable the owner to maintain trover as if that interest had never been created, pointing out that in all these the act complained of was wholly inconsistent with the contract, as if a hirer of goods were to sell or destroy them, though even then it might have been better to hold that the owner should bring an action on the case, and recover only the actual damage. But where the act, though unauthorised, is not so repugnant to the contract as to show a disclaimer the law is otherwise (d). A sub-pledge seems to come within this rule, unless there has been a special personal confidence in the pawnee, and a stipulation that the pawn shall be kept by him alone. In general all that the pledgor requires is the personal contract of the pledgee, that on bringing the money the pawn shall be given up to him, and (a) Treatise on Bailments, sec. 328. (c) Coggs v. Bernard, 1 Lord Raymond, 909, 1 Smith's L.C., 5th edit., 172, 181, Story, sec. 327, Whittaker "On Lien," 140 (pub. 1812). (d) Lee v. Atkinson, Yelv., 172, where the hirer of a horse deviated from the road on which when he hired it, he had said he meant to go. that in the meantime the pledgee shall be responsible for due care being taken for its safe custody, and this may be very well done, though there has been a sub-pledge, at least the plaintiff should try whether by bringing the money for which he pledged these debentures to Simpson, he cannot get them. And the assignment of the pawn for the pur. pose of raising money, so long at least as it purports to transfer no more than the pledgee's interest against the pledgor, is so far from being found in practice to be incon. sistent with the contract, that it has been introduced into the Factors' Acts, and is, in the civil law and in Morse v. Conham, treated as a regular incident in a pledge. If it is too early or too great, it is doubtless unlawful, but it is not so repugnant to the contract as to amount to a renun. ciation of it. After referring to analogous cases of unpaid vendors (b), and also to Johnson v. Stear (c), the learned judge said the Court of Common Pleas in that case appeared to have meant to decide that the pledge gave a special property which still continued; and on the same principle the plaintiff in Donald v. Suckling, not being entitled to the uncontrolled possession of the pawn, could not recover in detinue. The Lord Chief Justice Cockburn, while agreeing with the majority of his puisnes, hesitated to say that a pawnee has a right to transfer his interest in the pawn, because such a right seemed to him quite inconsistent with the right of the pawnor to have the pawn returned to him immediately on tender of the amount due upon it; and as was said by Mr. Justice Mellor, it might be excluded by the very nature of the thing pawned. But even so, the sub-pledge would not put an end to the contract, but would only give the pledgor an action in which he could recover such damages as he had actually sustained. The contract remains in force, and with it the special property which it has created, nor can the pawnor treat it as at an end until he has done that which alone enables him to divest the pawnee of his inchoate right of property in the pawn, or recover back goods (or other chattels) pledged as security for the payment of a debt, until he has paid or tendered the amount of the debt. (a) Bloxam v. Sanders, 4 B. & C., 941; Milgate v. Keble, 3 M. & G., 100. (b) 15 C.B. (N.S.), 330, 33 L.J. (N.§.), C.P., 134, 9 L.T. (N.S.), 538. The judgments in this case have been given at consider. able length, both on account of the importance of the point decided, and of the care with which the learned judges examined and discussed the pre-existing law. On the abstract right to repledge it may be said that no univer sally binding rule has been laid down, because while Blackburn and Mellor, JJ. think that such a right does exist, the Lord Chief Justice expressly guards himself from a formal recognition of that doctrine, and Mr. Justice Shee formally and emphatically repudiates it. But the great practical value of the decision lies in the degree to which it discourages the old doctrine that any such act as repawning vitiates the entire contract, and renders the pawnee liable to an action of trover, in which the measure of damages would be the full value of the goods pawned. Taken in connection with Johnson v. Stear (a), the case of Donald v. Suckling (b) shows conclusively that even if the pawnee have done an act not altogether warranted by his contract, the pawnor, if he have sustained no real damage, cannot make such an act on the part of the pawnee, a pretext for getting his goods again without payment of the sum for which they were pledged. It also shows that on the question of abstract right, the leaning of the Court is towards that power of free though qualified alienaion of the debtor's property, which is so necessary and sotconvenient in carrying on the affairs of a great commercial nation. (a) 33 L.J. (N.S.), C.P., 130, 15 C.B. (N.S.), 330, 9 L.T .(N.S.) 538. (b) 1 Law Reports, Q.B., 585, 14 L.T. (N.S.) 772; noticed also in 1 Law Journal Notes of Cases, 284, 1 Law Reports Notes of Cases, 276. To be reported in 6 Best & Smith's Q.B. Reports, 35 Law Journal, (N.S.), Q.B., 12 Jurist, (N.S.), and Weekly Reporter. SECTION VII. OF THE STATUTORY RIGHTS OF THE PAWNEE. We need not linger long over this section. The rights which have been given to pawnees dealing with factors and agents have been already discussed, and the interference of the Legislature with pawnees of a particular class, while laying upon them many liabilities, has added but little to the rights they possessed at Common Law. From this remark, however, must be excepted the power of charging interest at particular rates, which Pawnbrokers enjoy, and of exacting certain sums in payment for the note or memorandum which they are obliged to give with each pawn. So long as the Usury Laws were in force, no person was allowed to charge a higher rate of interest than five per cent., unless specially authorised by Statute. And though, in contracts generally, when both parties act bond fide and without fraud, any rate of interest may now be recovered, for which the parties stipulate, Pawnbrokers, as such (a), are not entitled to the benefit of the repeal, but must still regulate their charges for interest according to the Pawnbrokers' Act (b). This Act provides (c), that all persons exer (a) But when not acting as Pawnbrokers, they are not bound by these restrictions, see Pennell v. Attenborough, 4 Q.B., 868, 5 Burn's Justice, 474. (c) By sec. 2. (b) 39 & 40 Geo. 3, cap. 99. cising the trade of a Pawnbroker shall be entitled to charge interest at the following rates, and that such interest shall be paid, in addition to the principal, before the Pawnbroker shall be obliged to re-deliver the pawn, viz. :— For every pledge on which there has been lent any sum not exceeding There shall be charged the sum of . for any time during which the said pledge shall remain in pawn not exceeding one calendar month (a); and the same for every month afterwards, including the current month in which such pledge shall be redeemed, although such month shall not be expired. For every pledge on which there has been lent £ S. d. 026 d. . . 0 5 1 and so on up to 40s. If above 40s. and not above 42s. 8 And for every pledge on which any sum above 42s. and not above £10 has been lent, at the (a) See observations on this right to charge interest, ante, page 79. |