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must be exposed to public view (a); the auctioneer must (Rule 2) publish catalogues of the pledges stating the Pawnbroker's name and place of business, the month of pledge, and the number of each pledge; (Rule 3) each Pawnbroker's pledges shall be separately catalogued; (Rule 4) the sale shall be advertised in some public newspaper; (Rule 5) on two several days, the last advertisement appearing at least three days before the first day of sale; pictures, prints, and sundry other valuables must (Rule 6) be sold separately at special sales, commencing on the "first Monday in January, April, July, and October in each year." The Pawnbroker may bid at such sale (sec. 19), but in the same form as any other person, and when knocking down the article the Auctioneer shall (Rule 7) declare audibly the name of the Pawnbroker as purchaser. Within 14 days of the sale (Rule 8) he must furnish the Pawnbroker with a copy of so much of the catalogue as relates to his pledges, with the amounts produced by each lot duly filled up and authenticated by his signature, and such copy must be preserved for three years at least after the auction. The Pawnbroker must also enter certain particulars of the sale in the sale book (6), which, together with the copy of catalogue mentioned above, he must produce at any time within three years after auction, on payment of a search fee of one penny, to the holder of the pawn-ticket, to whom he must pay any surplus produce of sale, subject to set-off of deficit on sales of other pledges within 12 months (c). Penalty for breach of any of these regulations is not more than £10, payable to the party aggrieved, unless otherwise ordered (d). Under special contracts within the Act, the time for redemption, and by

(a) 35 and 36 Vict., cap. 93, sec. 19, and sched. V.

(b) 35 and 36 Vict., cap. 93, sec. 21.

(c) Ibid. sec. 22.

(d) Ibid. secs. 23, 32, 45, and 46.

consequence, that of sale also, may vary from that fixed by statute (a). Special charges for warehousing, and for interest, may also be made (b).

It has been said that, in the absence of contract, the pawnee is not, at Common Law, compellable to sell; but this was said anent the point, whether another creditor, by attachment or execution, could compel the pledgee to sell. The Court decided that he could not (c). But the pawnor, as owner of the pawn, may sell the pawn when he pleases, subject only to the pawnee's right thereto.

When several things are pledged, each is deemed liable for the whole debt or other engagement, and the pledgee may sell them from time to time, till the whole debt or claim is discharged. If one thing perishes by accident orf casualty without his default, he has a right over all the residue for his whole debt, or duty, and he may sell, not only the things pledged, but also their increments. But when once he has obtained an entire satisfaction, he can proceed no further, and if there is any surplus, it belongs to the pledgor (d). The liabilities consequent upon this doctrine, will be considered in the next Chapter.

(a) 35 & 36 Vict., cap. 93, sec. 24.

(b) Ibid. sec. 24, and scheduled form of special contract. (c) Story On Bailments, sec. 320, citing Badlam v. Tucker, 1 Pick., 389. (d) Story On Bailments, sec. 314.

CHAPTER XIII.

THE RIGHTS AND LIABILITIES OF THE PARTIES AFTER SALE.

When the pawn has been kept with proper care, and, upon the pawnor's default, has been sold in a proper way, the pawnee's rights and liabilities are few and simple. If the sale has resulted in a deficit, he is entitled to recover the amount thereof from the pawnor, because the pawn is but collateral security, unless there has been a special agreement to stand to it alone (a). Conversely, if such a sale has resulted in a surplus, the pawnee is, to that extent, a trustee for the pawnor, and must pay over the surplus to him (b), for the pawnee's right is strictly confined to a sale (c), and he cannot appropriate the property to himself upon the pawnor's default (d). Nor can a mortgagee [or pawnee], from a person who has died insolvent, retain the surplus proceeds of the mortgaged [or pledged] property, in discharge of a simple contract debt due from the mortgagor [or pawnor], so as thereby to give himself a preference over other creditors. He must pay over the surplus to his debtor's personal representative (e). If before sale, the pawn has been damaged or injured by the pawnee's negligence, he will be liable to account, not only for the actual proceeds of the sale, but for what it would have produced if it had not been so injured, for every trustee,

(a) South Sea Co. v. Duncombe, 2 Str. 919.

(b) Story On Bailments, sec. 314, 1 Domat. B. 3, tit. 1, sec. 1, art. 29; Bac. Ab. tit. Bailment B.

(c) Carter v. Wake, L.R. 4, Ch. D. 605, 46 L.J. 841, Ch. D. 841; see also Rushbrook v. Lawrence, 39 L.J. 93 Ch.

(d) Story On Bailments, sec. 318.

(e) Talbot v. Frere, L.R. 9 Ch. D. 568, 27 W.R. 148.

mortgagee, [or pawnee], is liable for wilful default if he does not receive what he might have received by due diligence (a). On the same principle, a landlord is liable for not selling goods distrained for the best price (b).. So, when a guaranteed creditor by his own default, loses or imperils securities available in reduction of his debt, he will, by such negligence, discharge the surety pro tanto, as when such a creditor negligently allowed his debtor to remain in possession of goods assigned to secure his debt, and the property consequently passed to the debtor's trustee in bankruptcy (c). The case was decided on the creditor's obligation to the surety, which is closely analogous to that of the pawnee to the pawnor. In each case the sum payable by pawnor or guarantor is reducible by the value of the thing assigned or pawned, and if that be lost or depreciated by the creditor's default, his debt will be extinguished or abated according to the extent of the injury sustained. So, if the pawnee of a negotiable instrument compromise with the parties liable thereon, without the pawnor's consent, he will generally be liable to account to his pawnor for the full amount (d). And a mortgagee, who had sold improperly, was recently held liable in damages which included the costs of the sale, the expenses of re-investment, the probable increase in the value of the property, and the costs of the action, as between solicitor and client (e).

(a) Per Jessel, M.R., Mayer v. Murray, L.R. 8 Ch. D. 824, 47 L.J. 605, Ch. D., 26 W.R. 690.

(b) By 2 W. & M., sess. 1, cap. 5, Hawkins v. Walrond, L.R. 1 C.P.D. 280, 45 L.J. 772, C.P. 35, L.T. N.S. 210, 24 W.R. 824.

(c) Wulff v. Billing, L.R. 7 Q.B. 756, 41 L.J. 322, Q.B. 27 L.T. N.S. 118, 20 W.R. 1030; Rainbow v. Luggins, L.R. 5 Q.B.D. 138, 49 L.J. 353, Q.B. 28 W.R. 428; re Barned's Bank, exp. Stephens, L.R. 3 C.A. 753, 19 L.T. N.S. 198, 16 W.R. 1162.

(d) Story On Bailments, sec. 321.

(e) Cockburn v. Edwards, L.R. 16 Ch. D. 394.

As stated in a previous chapter (a), the pawnor is entitled to all income, profits, and advantages derived from the pledge, against which the pawnee may charge his principal, interest, and reasonable expenses (b). As against the pawnee, the pawnor would probably be entitled to charge, on the footing of wilful default, if a pawn deposited upon an implied (or expressed) obligation to employ the pledge at a profit were allowed to remain idle, as when money is pledged to be lent at interest, or a coach or ferry-boat to be used in the customary carriage of passengers (c), subject to reasonable allowance for loss of time, skill, and trouble, as when a mate succeeding to command of a merchant ship on his captain's death, traded for the benefit of the deceased's estate, with money he had brought with him for that purpose (d). Conversely, a bailee (a shipowner), who failed to render proper assistance, or obtain contributior, for cargo damaged in transit, was held liable, though the Bill of Lading contained a stipulation against liability for any damage capable of being insured against (e).

It may sometimes become necessary to marshal debts, or appropriate payments, in order to ascertain the rights of the parties before or after sale, in pledge, as in mortgage transactions. If there be several debts secured by several pledges, a payment, not specifically appropriated when made by either payer or payee, will be applied in order of time (ƒ).

When one pledge is made to secure an overdue balance, by a pawnor, who, being unable to satisfy the debt and

(a) Ante, Cap. VI.

(b) Ante Cap. VII. See also Ratcliff v. Davis, 1 Bulst. 29; McCombie v. Davis, 7 East. 5; Story On Bailments, sec. 324.

(c) Story On Bailments, sec. 343.

(d) Brown v. Litton, 1 P. Wms. 140, 10 Mod. 20.

(e) Crooks v. Allan, L.R. 5 Q.B.D. 38, 49 L.J. 201, Q.B., 41 L.T. N.S. 800, 28 W.R. 304.

(ƒ) Hooper v. Keay, L.R. 1 Q.B.D. 178, 34 L.T. N.S. 574, 24 W.R. 485.