as objectionable as one made by a broker on his own behalf, while professing to act for his principal (a). No custom of trade can validate such a mode of dealing, even if there be no reason to impute mala fides (b).

Money received by a person in a fiduciary capacity, as by a broker for his principal, [or pawnee for his pawnor], and improperly applied to the receiver's own use, may be followed and recovered by the principal when it can be clearly ear-marked, and when the rights of third persons will not be prejudiced thereby (c).

On the same principle, and under similar circumstances, a pawnor may follow the surplus produce of the sale of a pawn. As between two or more cestuis que trustent, the first sum paid in will be taken to have been first drawn out, so that if the balance be insufficient to satisfy both claims, the second will rank before the first (d).

As the pawnee receives the pawn from the pawnor, he is in general, estopped from denying the pawnor's title. He may, however, show that that title has been defeated (e), as by a claim from the original owner of the goods, from whom they had been obtained by the pawnor's fraud (f).

The pawnor has a remedy by action for redemption in the Chancery Division, submitting to pay whatever may be found to be due, and seeking to have all necessary

(a) Robinson v. Mollett, L.R. 5 C.P. 646,7 C.P. 84 (in Ex. Ch.), 7 H.L. 802. (b) Ibid.

(c) Exp. Cooke, re Strachan, L.R. 4 Ch. D. 123, 46 L.J. 52 Bk., 35 L.T. N.S. 619, 25 W.R. 171 (in C.A.). Pearson v. Scott, L.R. 9 Ch. D. 198, 38 L.T. N.S. 747, 26 W.R. 796.

(d) Re Hallett's Estate, L.R. 13 Ch. 696, 49 L.J. 415 Ch. D., 42 L.T. N.S. 421 (in C.A.).

(e) Atkinson v. Marshall, 12 L.J. 117 Ex.

(f) Clough v. London & North-Western Railway Coy., L.R. 7 Ex. 26, 41 L.J. 17 Ex., 25 L.T. N.S. 708, 20 W.R. 189.

accounts taken between himself and the pawnee, of what is due for principal, interest, and costs. The pawnee will not lose his right to costs by demanding more than may eventually be found due, provided that something was unpaid when the action commenced (a). But if he admits the plaintiff's title as pawnor, he cannot refuse to furnish accounts to him on that footing (b).

It would seem that [a redeeming pawnor, like] a vendee, has a personal right to receive delivery of goods [redeemed or] purchased (c). But it is sufficient if the usual course of business between the parties be followed (d).

The remedies of the pawnee are founded, either on the contract itself, or on the qualified property in, and the right to actual possession of, the pawn which he has thereby acquired.

Remedies of the latter class are available against all persons by whom the pawnee's proprietorial and possessory rights are infringed. By such remedies the pawnee may recover damages for wrongful dealing with the pawn, or may obtain judgment for its return in specie. The circumstances which render one or the other remedy preferable under given circumstances have already been discussed (e), but as the pawnee has a right to the possession of the pawn, so long as his debt remains wholly or in part undischarged, he is not, like the pawnor, bound to pay or tender the debt in order to reduce the pawn into possession.

(a) Cotterell v. Stratton, L.R. 8 C.A. 295, 42 L.J. 417 Ch., 28 L.T. N.S. 218, 21 W.R. 234.

(b) Elmer v. Creasy, L.R. 9 C.A. 69, 42 L.J. 807 Ch., 29 L.T. N.S. 632, 21 W.R. 821, and (in C.A.) 29 L.T. N.S. 129, 22 W.R. 111.

(c) Wolfe v. Horne, L.R. 2 Q.B.D. 355, 46 L.J. 534 Q.B.D., 36 L.T. N.S. 705, 25 W.R. 728.

(d) McKean v. McIvor, L.R. 6 Ex. 36, 40 L.J. 30 Ex., 24 L.T. N.S. 559.

(e) See ante, p. 240.

The remedies of the pawnee upon the contract are available only against the pawnor, or persons who have acquired his rights thereunder, as transferees, trustees in bankruptcy, executors, administrators, or otherwise.

For principal, interest, and expenses due upon the pawn, the pawnee has his remedy by action, to which he may resort while the pawn is still in his possession, for the debt is the principal engagement, and the deposit of the pawn is only a collateral security for payment (a).

The pawnee cannot sue for the debt before the lapse of the prescribed period for redemption (b), but when that has expired, receipt of interest, without any agreement to renew the pledge, or give further time for payment (c), does not affect his right to call in the principal (√).

If the pawn should perish without the pawnee's default, the pawnee's remedy by action to recover the amount of his debt is not affected thereby (e).

If the sale of the pawn has produced less than the amount due thereon, the deficit is recoverable by action (ƒ). And if sued for conversion or other wrongful dealing with the pawn, the pawnee may obtain the benefit of his advances in the shape of a reduction of damages (g). Since

(a) Story On Bailments, sec. 315.
(b) 1 Reeves's History of English Law, 162.
Society, L.R. 10 Q.B. 264, 44 L.J. 126 Q.B., 32

Anon. 12 Mod. 564.

Reed v. Kilburn Co-operative
L.T. N.S. 600, 23 W.R. $28.

(c) Albert v. Grosvenor Investment Coy., L.R. 3 Q.B. 123, 37 L.J., 24 Q.B. (d) Keene v. Biscoe, L.R. 8 C.D. 291, 47 L.J. 644 Ch., 38 L.T. N.S. 286, 26 W.R. 552.

(e) Coggs v. Bernard, 2 Ld. Raym. 909, 1 Smith's L.C. 7th edit. 188; Vere v. Smith, 1 Vent. 121; Finucane v. Small, 1 Esp. 315; Harris v. Packwood, 3 Taunt. 264; Isaack v. Clarke, 2 Bulst. 306; Johnson v. Stear, 15 C.B. N.S. 330, 33 L.J. 130 C.P., 12 W.R. 347; Pigot v. Cubley, 15 C.B. N.S. 701, 33 L.J. 134 C.P., 12 W.R. 467. (f) Ibid.

(g) Ratcliff v. Davis, Cro. Jac. 245, Yelv. 178.

the Judicature Act, he has also, in such case, a remedy by way of set-off or counter claim (a).

On the pawnor's failure to redeem pursuant to contract or notice, the pawnee may sell the pawn to recoup his claim for principal, interest, and costs (b), which latter may include the costs of unsuccessful endeavours to defend the pawnor's title (c).

When a time for redemption is fixed by the contract itself, a power of sale on default is impliedly contained therein (d). If no time was fixed by the contract, the pawnor may be required to redeem by reasonable notice to that effect (e). But if, from any cause, it be deemed unadvisable to rely upon such notice, the pawnee may bring an action to compel redemption, or, failing redemption, to direct the pawn to be sold or dealt with under direction of the Court (f). A sale thus judicially ordered and conducted, will not be opened (g).

A mortgagee may sue for foreclosure, whether his security be legal or equitable (h), and if the mortgagor be

(a) 36 & 37 Vict., cap. 66, sec. 24, sub-sec. 3. Order XIX., rules 8 & 9. Order XXII, rule 8.

(b) Ante, Cap. XI., ON THE REDEMPTION, and Cap. XII., ON THE SALE OF THE PAWN. Kemp v. Westbrook, 1 Ves. 278; Demandray v. Metcalf, Pre. Ch. 419, 420; Jones v. Smith, 2 Ves. Jr. 372.

(c) Exp. Carr, re Hofman, L.R. 11 Ch. D. 62, 48 L.J. 69 Bk., 40 L.T. N.S. 299, 27 W.R. 455 (in C.A.).

(d) Ante, Cap. XII., ON THE SALE OF THE PAWN.

(e) 1 Reeves's History, 162. Massey v. Sladen, L.R. 4 Ex. 13, 38 L.J. 34 Ex. Exp. Trevor, re Burghardt, L.R. 1 Ch. D. 297, 45 L.J. 27 Bk., 33 L.T. N.S. 756, 24 W.R. 301.

(ƒ) As when heirlooms have to be dealt with, which cannot be sold except to pay mortgages-Fane v. Fane, L.R. 2 Ch. D. 711, 46 L.J. 174 Ch.; though on strong proof of benefit thence ensuing, the Court might authorise application for a private Act for that purpose ;-D'Eyncourt v. Gregory, L.R. 3 C.D. 635, 45 L.J. 741 Ch. D., 25 W.R. 6. (9) Re Bartlett, Newman v. Hook, L.R. 16 Ch. D. 561, 50 L.J. 205 Ch., 44 L.T. N.S. 17, 29 W.R. 279.

(h) Backhouse v. Charlton, L.R. 8 Ch. D. 444, 26 W.R. 504.

bankrupt, will not be restrained by the Court of Bankruptcy from enforcing his security (a). The pawnee's remedy is not foreclosure, but sale, which may usually be obtained by act of party, and without legal proceedings (b). If such are deemed necessary, the action, as one to enforce a charge, must be brought in the Chancery Division (c).

An order for payment may, since the Judicature Acts, be combined with one for foreclosure (d), and semble, for sale also.

When the pledge is made to several pawnees jointly, all must join in proceedings to enforce the security (e), unless perhaps in cases of collusion, fraud, or imminent danger to the security, when one or some may take steps for its protection (f).

The remedies of pawnor and pawnee are exerciseable by and against their representatives. Thus, the pawnor's trustee in bankruptcy has all the pawnor's rights, not only against the pawnee, but the pawnee's trustee in bankruptcy (g); and if the first mortgagee [or pawnee] of a bankrupt gives up his security, the trustee in bankruptcy, and not the second incumbrances, will stand in his place (h).

(a) Re England, ex parte Pannell, L.R. 6 Ch. D. 335, 47 L.J. 21 Bk., 37 L.T. N.S. 450, 26 W.R. 194 (in C.A.).

(b) See ante, Cap. XII., ON THE SALE OF THE PAWN. Story's Equity, sec. 1033. Spence's Ibid, 639, 771. Carter v. Wake, L.R. 4 Ch. D. 605, 46 L.J. 841 Ch. D., (per Jessell, M.R.).

(c) 36 & 37 Vict., cap. 66, sec. 34.

(d) Dymond v. Croft, L.R. 3 Ch. D. 512, 45 L.J. 504 Ch. D. 604, 34 L.T. N.S. 786, 24 W.R. 842.

(e) May v. East, 13 East 137. Harper v. Godsell, L.R. 5 Q.B. 422, 39 L.J. 185 Q.B., 18 W.R. 954. Kendall v. Hamilton, L.R. 3 C.P.D. 403, 47 L.J. 665 C.P., 39 L.T. N.S. 250, 27 W.R. 121 (and in H.L.), L.R. 4 A.C. 504, 48 L.J. 705 C.P., 41 L.T. N.S. 418, 28 W.R. 97.

(f) Luke v. South Kensington Hotel Coy., L.R. 7 Ch. D. 789, 48 L.J. 361 Ch., 40 L.T. N.S. 688, 27 W.R. 514 (in C.A.).

(g) Waddell v. Toleman, L.R. 9 Ch. D. 212, 38 L.T. N.S. 910, 26 W.R. 802. (h) Cracknall v. Janson, L.R. 6 Ch. 735, 46 L.J. 652 Ch. D., 37 L.T. N.S. 118, 25 W.R. 904.