Europe, as well as the rule of the English law. (b) The pawnee is secure in the payment of his debt; and the pawnor is enabled thereby to procure credit. Lord Holt, in Coggs v. Bernard, gives a clear and excellent summary of the English law on this species of bailment. The pawnee, upon delivery, has a special property in the goods pawned; and if they be such as to be injured by use, as clothes or linen, for instance, then the pawnee cannot use them. But if they be such as not to be the worse for use, as jewels, ear-rings, or bracelets, pawned to a lady, she to whom they are pawned may use them, though the use is at her peril, because she is at no charge in keeping the pawn. (c) She shall be responsible in every event for the loss or damage which may happen while she is using the jewels. If the pawn be of such a nature as to be a charge upon the pawnee, as a horse or cow, he may, in that case, use the pawn in a reasonable manner. He may ride the horse moderately, and milk the cow regularly, as if he were the owner; and if he derives any profit from the pledge, he must apply those profits towards his debt. (d) The common law requires the pawnee or pledgee to account for all the income, increase, profits, and advantages derived by him from the pledge, in all cases where such an account is within the scope of the engagement, after deducting his necessary charges and *579 expenses. (a) It is reasonable that these charges and expenses should be deducted from the profits of the pledge; and even extraordinary expenses necessarily incurred by the pawnee for the preservation of the pledge, and without his default, ought to be borne by the pledgor; and Pothier (b) considers this obligation to be implied in the contract of bailment, and it is the rule in the French and Louisianian codes. (c)

271.

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(b) Dig. 13, 6, 5, 2. Ibid. 13, 7, 14. Heinecc. Pand. 13, 6, sec. 117, 118, tom. v. Pothier Traité du Contrat de Nantissement, Nos. 32, 33, 34. Bracton, 99 b. Lord Holt, in Coggs v. Bernard, 2 Ld. Raym. 916. Story's Com. § 332. 1 Bell's Com. 453.

(c) This is so said by Lord Holt, in Coggs v. Bernard, 2 Ld. Raym. 917, and repeated by Sir William Jones; but Mr. Justice Story, in his Commentaries, § 330, doubts the right of the pawnee to use the jewels.

(d) Mores v. Conham, Owen, 123. Pothier, Traité du Contrat de Nantissement, Nos. 23, 35, 36. Civil Code of Louisiana, art. 2919, 3135. Thompson v. Patrick, 4 Watts, 414. (a) Story's Com. § 343.

(b) Pothier, Traité du Contrat de Nantissement, No. 61.

(c) Code Civil of France, art. 2080. Code of Louisiana, art. 3139.

In general, the law requires nothing extraordinary of the pawnee, but only that he shall take ordinary care of the goods; and if they should then happen to be lost, he may, notwithstanding, resort to the pawnee for his debt. If, however, he refuses to deliver the pawn on tender of the debt, his special property then ceases, and he becomes a wrong-doer and will be answerable, at all events, for any loss or damage which may afterwards happen to the pawn. (d) It is likewise admitted that the pawnee may assign over the pawn, and the assignee will take it under all the responsibility of the original pawnee. (e) So the pawnor may sell or assign his qualified property in the pawn, subject to the rights of the pawnee. (ƒ) 1

If the pawn be lost by casualty, or unavoidable accident, or by superior force, or perishes from intrinsic defect or infirmity, the pawnee is not answerable, if the loss from such causes be duly made to appear, and no act was done, or omitted to be done, inconsistent with the pawnee's duty; for he was only bound to bestow ordinary care and diligence. (g) If the pawn be stolen, it would be presumptive evidence that the pawnee had not used ordinary care, and he ought to show, by the circumstances, that

*

he was in no default. Sir William Jones, (h) enters into a *580 critical examination of the cases, to prove that the pawnee is responsible, if the pawn be stolen or taken from him clandestinely, and not if it be robbed or taken from him by violence. The ground he takes is, that the loss of the pawn by theft is evidence of ordinary neglect; and he vindicates his principle against a contrary doctrine of Lord Coke, with great acuteness and learning. Lord Coke held, (a) that if the goods were delivered to one in pledge, and they were stolen, he should not be answerable for them; for he only undertook to keep them as his

(d) 2 Lord Raym. 916, 917.

(e) Mores v. Conham, Owen, 123. Kemp v. Westbrook, 1 Vesey, 178. Ratcliff v. Vance, 2 Const. (S. C.) 239. Whitaker v. Sumner, 20 Pick. 399. Story on Bailments, SS 314, 324-328.

(f) Franklin v. Neate, 13 Mees. & W. 481. Story on Bailments, § 350.

(g) Code, 4, 24, 5. Pothier, Traité du Contrat de Nantissement, No. 31. Story's Com. § 339.

(h) Essay on Bailment, 33, 59, 60, 63, 69.

(a) Co. Litt. 89 a. 4 Co. 83 b.

1 The general rules applicable to pledges, do not apply to commercial paper. Appleton v. Donaldson, 3 Barr, 381.

own.

The opinion of Lord Holt would rather seem to agree with that of Coke, as he refers to him on this point without objection; and he says, that if the pawnee uses due diligence, and the pawn be lost, he is not responsible. Bracton uses the same language. If the pawnee bestows an exact diligence, and the pawn be lost by chance, he is not responsible for the loss. (b) Bracton took all his principles from the Roman law; and Pothier has written a particular treatise upon this identical species of contract. (c) He discusses the question, what degree of care a pawnee is bound to bestow upon the pawn; and as it is a contract made for the reciprocal benefit of the contracting parties, the creditor is bound to bestow upon the preservation of the pledge ordinary care. He is bound, according to the civil law, to bestow that care which a careful man bestows upon his own property. He is not bound to bestow the exactest diligence, as in the case of a loan to use, which is beneficial to the bailee only, nor is he responsible for the smallest neglect. He is responsible for light, but not the lightest, neglect, de levi culpa, and not de levissima culpa. (d)

*

It

The rule would appear to be, that the pawnee was neither absolutely liable, nor absolutely excusable, if the pledge be stolen. would depend upon circumstances whether he was or was not liable. A theft may happen without even a slight * 581 neglect on the part of the possessor of the chattel; and I think it would be going quite far enough to hold that such a loss is prima facie evidence of neglect, and that it lies with the pawnee to destroy the presumption. It is not sufficient, says Pothier, that the pawnee allege that the pledge is lost. He must show how it was lost, and that it was not in his power to prevent it. This was also the decision of the civil law. (a)

In the case of Cortelyou v. Lansing, (b) it was shown, by a

(b) Bracton, 99 b.

(c) Pothier, Traité du Contrat de Nantissement.

(d) Ibid. Nos. 32, 36.

(a) Pothier, Traité du Contrat de Nantissement, No. 31. Mr. Justice Story (Com. §§ 333-338) has very fully and ably vindicated the doctrine of Lord Coke against that of Sir William Jones, and he has satisfactorily proved, that theft per se establishes neither responsibility nor irresponsibility in the bailee.

(b) 2 Caines's Cases in Error, 200.

1 It seems, that where it is necessary for a pledgee to employ an agent, and he exercises reasonable care in the choice of such agent, he will not be responsible for his neglect or misconduct. Commercial Bank v. Martin, 1 Louis. Ann. 344.

careful examination of the old authorities, to have been the ancient and settled English law, that delivery was essential to a pledge, and that the general property did not pass, as in the case of a mortgage, but remained with the pawnor. The pledge of movables without delivery is void, as against creditors. (e) The Roman law allowed the creditor, after delivery of the pledge, to return it to the debtor on the footing of location; but Voet and Bell very properly condemn the Roman rule, as leading to fraud and the insecurity of property. (d) At common law, if the pledge was not redeemed by the stipulated time, it did not then become the absolute property of the pawnee, but he was obliged to have recourse to process of law to sell the pledge; 2 and until that was done, the pawnor was entitled to redeem. (e) If the pledge was for an indefinite time, the creditor might, at any time,

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call upon the debtor to redeem by the same process of *582 demand. Where no time was limited for the redemption, the pawnor had his own lifetime to redeem, unless the creditor, in the mean time, called upon him to redeem; and if he died without such call, the right to redeem descended to his personal representatives. (a) The law now is, that after the debt

(c) 2 Bell's Com. 25, 5th edit. Story's Com. §§ 297, 298.

(d) Dig. 20, 1, 36. Voet, Com. ad Pand. 20, 1, 12. 2 Bell's Comm. 22. The pledge may, however, as it would seem, be delivered back to the owner in a new character, as a special bailee or agent, and the pledgee will still be entitled to the pledge, even as against third persons. Macomber v. Parker, 14 Pick. 497.1 Story on Bailment, § 299. If a thing be not in existence, there cannot be a technical pledge; but there may be a hypothetical contract, which will attach as a lien or pledge to it as soon as it comes into existence. Macomber v. Parker, 13 Pick. 175. Calkins v. Lockwood, 16 Conn. 276. Story on Bailment, § 290. Vide supra, pp. 517, 578.

(e) Glanville, lib. 10, ch. 6. Cortelyou v. Lansing, 2 Caines Cases 204, 205. (a) Cortelyou v. Lansing, ub sup. Ratcliff v. Davis,

Bulst. 29. Yelv. 178. Cro.

J. 244, S. C. Demandray v. Metcalf, Prec. in Ch. 420. Vanderze v. Willis, 3 Bro. C. C. 21. The pledgee, by the Roman law, might also insist upon a compulsory sale by the creditor. Pothier, Pand. 20, 5, 16. This is also the law in Louisiana. Williams v. Schooner St. Stephens, 14 Martin (Louis.) 24.

1 Hays v. Riddle, 1 Sandf. (N. Y.) 248.

2 Where the debt is payable on demand, a demand must be made before a sale of the pledge. Wilson v. Little, 1 Sandf. (N. Y.) 351. S,C. 2 Comst. 443. Where the pledge has been improperly sold, the pledgor may maintain an action for its value without making a tender of the debt for which the property was pledged. An agreement that the pledge may be sold, without notice, is not an agreement that it may be sold, without demanding payment of the debt.

is due, the pawnee may not only proceed personally against the pawnor for his debt without selling his pawn, for it is only a collateral security, (b) but he has the election of two remedies upon the pledge itself. He may file a bill in chancery, and have a judicial sale under a regular decree of foreclosure; and this has frequently been done in the case of stock, bonds, plate, and other chattels, pledged for the payment of the debt. (c) But the pawnee is not bound to wait for a sale under a decree of foreclosure, as he is in the case of a mortgage of land; (though Lord Chancellor Harcourt once held otherwise ;) and he may sell without judicial process, upon giving reasonable notice to the debtor to redeem. This was so settled in the cases of Tucker v. Wil

son (d) and of Lockwood v. Ewer. (e) The notice to the party in such cases is, however, indispensable. This was conceded in Tucker v. Wilson, and it has been since so ruled in this country. (f) The old rule existing in the time of Glanville, and which is now the rule on the continent of Europe and in Scotland, required a judicial sentence to warrant the sale. (g) The Code Napoleon (h) has retained the same check, and requires a judicial order for the sale; and the Code of Louisiana (i) has

* followed the same regulation. The civil law allowed the * 583 pawnee to sell, in case of default of payment, and after due notice on his own authority; but if there was no special agreement, it required a two years' notice to the debtor, by an order of

(b) South Sea Company v. Duncomb, Str. 919. Elder v. Rouse, 15 Wendell, 218. Story on Bailment, § 315.

(c) Demandray v. Metcalf, Prec. in Ch. 419. Gilbert's Eq. 104. brook, 1 Vesey, 278. Vanderzee v. Willis, 3 Bro. (C. C.) 21.

(d) 1 P. Wms. 261. 1 Bro. P. C. 494.

(e) 2 Atk. 303.

Kemp v. West

(f) De Lisle v. Priestman, 1 Browne Penn. 176. Covell v. Gerts, 9 Law Reporter for July, 1846.

(g) Glanville, lib. 10, ch. 6, 8. Huber's Prælec. tom. iii. 1072, sec. 6. Perezius in Cod, tom. ii. p. 63, sec. 8. Domat, vol. ii. p. 362, sec. 9, 10. Ersk. Inst. ovl. ii. p. 455. Pothier, Traité du Contrat de Nantissement, No. 24. 2 Bell's Com. 22, 5th edit. (h) Art. 2078.

(i) Art. 3132.

1 See Roberts v. Sykes, 30 Barb. (N. Y.) 173. Robinson v. Hurley, 11 Iowa, 410. Davis v. Funk, 39 Penn. State, 243. Brown v. Ward, 3 Duer, 360. But commercial paper, pledged as collateral security, cannot be sold by the pledgees. They must wait till the paper is mature and then collect it. Ibid.