A pledgee with power of sale, if default made in redemption on a certain day, will be guilty of a wrongful conversion if he sell the pledge before the day appointed for such redemption.

And where A. deposited a dock-warrant for certain goods with B., as a security for a loan to be repaid on a certain day, it being agreed that in default of payment B. should be at liberty to dispose of the pledge, A. became bankrupt, and B. before the day of payment entered into an absolute contract for the sale of the goods; he handed over the dock-warrant on the day of payment, and the vendee took actual possession of the goods the day after; it was held that this was a wrongful conversion of the goods by B. But held also (dissentiente Williams, J.) that the measure of damages for which B. was liable was not the full value of the goods, but the damage which A. had actually incurred by the premature sale, which in this case was merely nominal. And held (per Williams, J.) that A. was entitled to recover the full value of the goods (u).

The result of the authorities, therefore, appears to be, that if a day be appointed for redeeming the pledge, and the pledgor make default, a power to sell is implied; but the pledgee cannot sell until the time appointed for redemption has expired. If no time be stipulated for redemption, the pledgee cannot sell until after demand made and notice given to the pledgor of intention to sell on a day named in the notice.

If at the time of the pledge there be no power of sale agreed on, and no day named for redemption; and

(u) Johnson v. Stear, 33 L. J. C. P. 130, 15 C. B. N. S. 330.

the pledgee afterwards sell the pledge without demanding payment, or giving notice of intention to sell; yet the pledgor cannot sue the pledgee in trover, even for nominal damages, unless he has tendered the amount of the loan.

And where certain scrip certificates for shares in a mining company were pledged to secure the repayment of a sum of money, no time being fixed for such repayment the pledgor afterwards became bankrupt, and the pledgee then sold a portion of the certificates without making any demand for payment of the loan, and without giving any notice of his intention to sell. The assignee in bankruptcy of the pledgor's estate then brought an action of trover against the pledgee to recover the certificates, without having made any tender of the loan; and it was held, that the action was not maintainable (x).

In the absence of any decree of foreclosure vesting the property in the pledgee, he can only sell subject to the pledgor's right of redemption; for a power of sale is not implied on every pawning of goods. There may be a deposit with power to hold, or a deposit with power to sell (y).

If a lease be pledged as a security for a debt, the pledgee cannot sell the lease, nor concur in the sale thereof, without being guilty of a conversion and liable to an action of trover for the value thereof (2).

(x) Halliday v. Holgate, 37 L. J. Ex. 175, L. R. 3 Ex. 299; and see Donald v. Suckling, 7 B. & S. 783, 35 L. J. Q. B. 232.

(y) Micklethwaite v. Merrill, 19 L. T. 61.

(z) Clark v. Gilbert, 2 Bing. N. C. 357.

Pawnor's rights as against assignee and sub-pawnee.

As to the right of a pawnee to sub-pawn or transfer the pledge to another, in the absence of any agreement to that effect, the transfer of the pledge to another does not put an end to the original contract, but is a breach of contract for which the pawnee is liable to

the pawnor.

The point, however, as to a pawnee's right to repawn the pledge, does not appear to have ever been expressly decided in our Courts (a).

It is stated in Bacon's Abridgment, that some have holden, that upon a valuable consideration a pledge is assignable over, and that on such assignment the tender of the money from the pledgor must be to the assignee, because the pawnbroker hath a special property, and what he hath he may transfer over (b). But if a thing is not in my possession, I cannot grant it as a pawn, though I have a right to it, for a naked right is not

(a) By the Roman law, the creditor might alienate property deposited with him as a pledge, on the ground of the contract. But this alienation may perhaps be considered as taking place with the consent of the debtor, who had formerly agreed that the creditor might sell the thing pledged if the money due were not paid. "Item creditor pignus ex pactione, quamvis ejus ea res non sit. Sed hoc forsitan ideo videatur fieri, quod voluntate debitoris intelligitur, pignus alienari, qui olim pactus est, ut liceret creditori pignus vendere, si pecunia non solvatur." Gaius, Com. 11, s. 64; see also Dig. lib. 20, 5, Cod. 8, 24, Inst. 11, 8. If the pledgee consented to a further pledging of the thing, he did not thereby lose his right of pledge, but only his right of priority. Dig. lib. 20, tit. 4, 6. The right of pawn and mortgage itself might be made an object of pledge, i.e., one who held a pawn or mortgage might pledge it again to his own creditor (sub-pignus); in which case, as regarded payment, the latter had the preference. 1 Mackeldey, Mod. Civ. Law, 273, by Kaufmann, 1845.

(b) Bac. Abr., tit. Bailment, B; Bulst. 31, Mores v. Conham, Owen, 124.

transferable over (c). And in Viner's Abridgment it is stated, that the pawnee has such an interest in the pawn as he may assign over; but the assignee will be liable in detinue if he detains it on payment or tender of the money by the owner (d). And an American text-writer of good authority observes :-" The pawnee may, by the common law, 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 by way of pawn to another person, without in either case destroying or invalidating his security. But if the pawnee should undertake to pledge the property (not being negotiable securities) for a debt beyond his own, or to make a transfer thereof to his own creditor, as if he were the absolute owner, it is clear that in such a case he would be guilty of a breach of trust, and his creditor would acquire no title beyond that held by the pawnee. The only question which, under such circumstances, would seem to admit of controversy, is, whether the creditor should be entitled to retain the pledge until the original debt was discharged, or whether the owner might recover the pledge in the same manner as if the case was a naked tort, without any qualified right in the first pawnee " (e).

(c) Ibid. and 2 Roll. R. 439. According to the American authorities, choses in action, resting on written contract, may be assigned in pledge. 2 Kent's Com. 577 (768 of 11th ed.), McLean v. Walker, 10 Johns. 471. (d) Viner, Abr., tit. Pawn, A., citing Owen, 124; Mich. 7 Jac. C. B. Moor v. Canham.

(e) Story on Bailments, s. 324; and see 2 Kent's Com. 579 (770 in 11th ed.); also Whitaker v. Sumner, 20 Pick. 399.

On the point arising incidentally in a case recently before the Court of Queen's Bench (ƒ), Cockburn, L. C. J., observed :—“I think it unnecessary to the decision in the present case to determine whether a party with whom an article has been pledged as a security for the payment of money, has a right to transfer his interest in the thing pledged (subject to the right of redemption in the pawnor) to a third party. I should certainly hesitate to lay down the affirmative of that proposition. Such a right in the pawnee seems quite inconsistent with the undoubted right of the pledgor to have the thing pledged returned to him immediately on the tender of the amount for which the pledge was given. In some instances it may well be inferred from the nature of the thing pledged, as in the case of a valuable work of art, that the pawnor, though perfectly willing that the article should be intrusted to the custody of the pawnee, would not have parted with it on the terms that it should be passed on to others and committed to the custody of strangers."

Where a plaintiff pawned some jewels to one Knight for 1107., and signed a writing that they should be redeemed in twelve months; two days afterwards Knight pawned the jewels, together with some plate of his own, to one Metcalfe, as a security for 2007., and afterwards borrowed of Metcalfe the further sums of 361. and 50l. on promissory notes, to be repaid on demand; Knight became a bankrupt and insolvent. On a bill in equity filed by the plaintiff against Knight and Metcalfe, to redeem from Metcalfe, it was held

(f) Donald v. Suckling, 35 L. J. Q. B. 250.