May apply to the Pawnbroker for a form of declaration, which the Pawnbroker shall (a) deliver to him (b), and which shall be duly made before a Justice of the Peace by the applicant, and a person identifying him, and re-delivered to the Pawnbroker not later than the third day after receipt of the form. If the applicant does this, he has all the same rights (c) and remedies as if he had retained and produced the pawn-ticket (d), including that of allowing the pawn to remain unredeemed for the full statutory period. During the three days, the Pawnbroker may lawfully refuse to deliver the pledge to any one (e). If the declaration, duly made and witnessed, be re-delivered to the Pawnbroker within three days, he is indemnified for delivering the pledge or otherwise acting in conformity with the declaration, unless he has actual or constructive notice of fraud or material falsehood in the declaration (ƒ), which is punishable as perjury. If the Pawnbroker have antecedent notice of fraud or falsehood, it would seem that he should not refuse to deliver a form of declaration (g). Neither should he undertake to decide between the claims of rival applicants. If the pawn be of sufficient value, he should interplead. In other cases, he must leave the parties to bring the matter before Justices. A person who thus obtains a form of declaration, is bound to go before a Justice without delay. The Pawnbroker, under the Act of 1800 (h), might detain the goods for a reasonable time after giving a form of declaration, in order to ascertain the real owner, and a qualified refusal to deliver the goods pending inquiry for that purpose, did (a) These words appear to be imperative, and to compel the Pawnbroker to deliver the form to any person "claiming to be entitled, &c." 35 & 36 Vict., cap. 93, sec. 29, sub-sec. 1. (9) Per Grove, J., in Jones v. Harding, at the London Sittings, Dec., 1874. (h) 39 & 40 Geo, 3, cap. 99. not amount to a conversion for which he was liable in an action (a). The Act of 1872 has removed the uncertainty as to reasonable time, by rendering it obligatory on the applicant to return the declaration within three days. If he fails to do that, the words of sec. 29 seem to render absolute the Pawnbroker's obligation to deliver the pledge to the holder of the pawn-ticket, "for the purpose of the declaration [in the present, as in the repealed Pawnbrokers' Act], is to indemnify the Pawnbroker" (b). A Pawnbroker may be ordered to deliver to the real owner, any goods pawned with him, either with or without entire or partial payment of his loan thereon, if the pawnor is summarily convicted of knowingly and designedly pawning them without the pawnor's authority (c); if any person is convicted in any court of feloniously taking or fraudulently obtaining any goods or chattels (d); and also if any goods brought before the court in the course of any summary proceedings, appear to have been unlawfully pawned with a Pawnbroker (e). A Pawnbroker who, without reasonable excuse, proof whereof lies on him, refuses to deliver a pawn to a person entitled under the Act, may be fined £10 or ordered to deliver the goods, with or without payment of the loan and profit (ƒ). A Pawnbroker knowingly taking unfinished goods in pawn, offends against the Act, and may be ordered to restore the goods and to pay not more than twice the amount of the loan to the overseers of his parish (g). A search warrant for such goods may be issued on the (a) Vaughan v. Watt, 6 M. & W. 492. (b) Per Parke B., 6 M. & W. 498. (e) Ibid, sub-sec. 3, see post cap. XVIII:-THE REMEDIES OF THE PARTIES. (f) 35 & 36 Vict., cap. 93, sec. 31. (9) Ibid, sec. 35. owner's application (a). It will be seen that sec. 35 prescribes a special penalty for the offence therein mentioned. For offences not thus particularized, the penalty is any sum not exceeding £10 (6), one half whereof goes to the complainant, when he is the party aggrieved. In other cases, the court may award him "no part or such part only of the penalty as it may think fit" (c). A Pawnbroker must at all times attend and produce all business books and papers when required to do so by a Court of Summary Jurisdiction (d). The Court may require such production whenever necessary for the purposes of public or private justice. But this right is not given to the pawnor, by whom only the Sale Book and the Auctioneer's Catalogue may be compulsorily inspected under secs. 21 and 22. If the pawnor sues the Pawnbroker in a County or other Court of Civil Jurisdiction, he may obtain inspection of the defendant's books and papers in the ordinary way. But when he proceeds by summons to recover penalties, there is nothing in the Act to entitle him to inspect any books but those already named. There is an obvious reason for thus limiting the right of inspection, as to many whom poverty compels to pledge, it would be extremely painful to know that the record of their necessities was open to all comers. The Pawnbrokers' Act, 1872, made the Pawnbroker an insurer of the pawn, to the extent of the loan and profit and twenty-five per cent. on the amount of the loan, and enabled him to insure to that extent (e). Otherwise, by the practice of Insurance Companies, he could only (a) 35 & 36 Vict., cap. 93, sec. 36. (b) Ibid, sec. 45. (d) Ibid, sec. 50. (e) Ibid, sec. 27. have insured his own interest in the goods (a), though on a somewhat similar point, the court was equally divided, Bovill C.J., and Denman, J., holding that the plaintiff, a vendor of goods which he had sold, but of which he retained possession for the purchaser, to whom the property had passed, could recover, both for his own and his consignor's interest; Brett and Keating, J.J., holding that he could not (b). A Pawnbroker is only liable to pay the insured value of / the pawn to the pawnor, within the period during which the pawn would have been redeemable (c). If the pawn be injured or rendered of less value (otherwise than by fire), by the Pawnbroker's neglect or default, he may be ordered to pay reasonable compensation therefor (d). For the purposes of the Act, anything done or omitted by the servant, apprentice, or agent of the Pawnbroker, in the course of or relating to, his master's business, shall be deemed to have been done or omitted by the Pawnbroker (e). This liability attaches not only by Statute, but on the principle that if a man carries on a business for profit, he may be made liable for a nuisance caused by his servants while acting therein on his behalf (f). The same rule holds good in civil proceedings, as when money is obtained by a servant fraudulently misrepresenting (g) or (a) North British Mercantile Insurance Co. v. Moffatt, L.R. 7 C.P. 25, 41 L.J. 1 C.P., 25 L.T. N.S. 662, 20 W.R. 114. (b) Ebsworth v. Alliance Marine Insurance Co., L.R. 8 C.P. 596, 42 L.J. 305 C.P., 29 L.T. N.S. 479. (c) 35 & 36 Vict., cap. 93, sec. 27. (d) Ibid. sec. 28. (e) 35 & 36 Vict., cap. 93, sec. 8. (f) Reg. v. Stephens, L.R., 1 Q.B. 702, 35 L.J. 251 M.C., 14 L.T. N.S. 593, 14 W.R. 859. (9) Barwick v. English Joint Stock Bank, L.R., 2 Ex. 259, 36 L.J. 147 Ex., 16 L.T. N.S. 461, 15 W.R. 877 (in Ex. Ch.) L fraudulently concealing a material fact (a) while acting in the course of his employment, and for his principal's benefit. Until 1872, the hours wherein a Pawnbroker might lawfully follow his trade were strictly defined by statute. The present Act contains no such restriction, except that by which trading on Sunday, Good Friday, Christmas Day, or any public fast, humiliation or thanksgiving day is forbidden in England (6). In Scotland, Good Friday and Christmas Day are "lawful days" for Pawnbroking (c). Bank Holidays do not come within the same category, and a proposed clause to make them so was negatived without a division. But Pawnbrokers may close their shops on those days, if they do not thereby deprive the pawnor of any reasonable opportunity of redeeming his goods. The Common Law Liabilities of the pawnee with reference to stolen property, have been somewhat increased by statute. As already stated (d) a person who has no title to a chattel, and no authority from its owner to sell or pledge it, cannot in general, give any title to it (e) available against the true owner, who may take the goods wherever he can find them, provided only that there has been no sale in Market Overt, which would have the effect of divesting him of his title (f). Therefore, if goods feloniously stolen, or otherwise taken from the real owner, be pledged for value with a bona fide pawnee, the latter will be liable as for wrongful conversion of the goods, (a) Mackay v. Commercial Bank of New Brunswick, L.R., 5 P.C., 394., 43 L.J. 31 P.C., 30 L.T. N.S. 180, 22 W.R. 473. (b) 35 & 36 Vict., cap. 93, sec. 32, sub-sec. 4. (c) Ibid, sec. 56, sub-sec. 9. (d) Ante, Caps. III., 1V., V., VI. and VII. (e) For exceptions to this rule, see Cap. V. (f) White v. Spettigue, 13 M. & W. 603; Packer v. Gillies, 2 Camp. 336 n.; Cheesman v. Exall, 6 Ex. 341; Hardman v. Booth, 1 H. & C. 803, 32 L.J., 105 Ex., 7 L.T. N.S. 638; Lindsay v. Cundy, L.R., 2 Q.B.D. 96, 46 L.J., 233 Q.B., 36 L.T. N.S. 344, 25 W.R. 417, (and in H.L.) L.R. 3 A.C. 459, 47 L.J., 481 Q.B., 38 L.T. N.S. 573, 26 W.R. 406; Moyce v. Newington, L.R. 4 Q.B.D. 35, 48 L.J. 125 Q.B., 39 L.T. N.S. 535, 27 W.R. 319. |