The pawnee will have a remedy against the pawnor, as against any other bailor, for damages consequent on his knowingly delivering to him a pawn with any inherent vice, likely to cause danger or damage, without giving notice thereof (a).

The pawnor, pawnee, or other person interested in the preservation and proper custody of the pawn, may obtain an injunction to restrain any apprehended waste thereof, or trespass or damage thereto (b), as by selling it improvidently or prematurely, fraudulently transferring it (c), or otherwise converting it to uses not authorised by the contract. When the defendant is in possession of the chattel, and the apprehended damage is serious or irreparable, the tendency of the Court is to grant the injunction, and preserve the property in statu quo until the trial of the action (d). Lapse of time will not bar the right to an injunction, unless it also bars the legal right which the injunction is intended to enforce (e). And the Court may now (f) order the preservation or interim custody of the subject matter of the litigation, when, by any contract, a primá facie case is established. The Court may also order perishable things to be sold (g), or direct the detention, preservation, or inspection of any property (h).

The Court may also appoint a Receiver, who will usually be agent of the mortgagee [or pawnee] only, unless other

(a) Fowler v. Lock, L.R. 10 C.P. 90, 43 L.J. 394 n. C.P., 31 L.T. N.S. 844, 23 W.R. 415 (where the injury was done by a vicious horse); Farrant v. Barnes, 11 C.B. N.S. 556, 31 L.J. 137 C.P. (by a carboy of vitriol). (b) 36 & 37 Vict., cap. 66, sec. 25, sub-sec. 10.

(c) Exp. Anderson, re Anderson, L.R. 5 C.A. 473, 39 L.J. 49 Bk., 22 L.T. N.S. 261, 18 W.R. 715.

(d) Lowndes v. Brettle, 33 L.J. 451 Ch.

(e) Fullwood v. Fullwood, L.R. 9 Ch. D. 176, 47 L.J. 459 Ch., 38 L.T. N.S. 380, 26 W.R. 435.

(ƒ) Judicature Act, Order LII., r. 1. (g) Ibid, rule 2. (h) Ibid, rule 3.

trusts are created by the order appointing him (a), in all cases where such a course shall seem just or convenient (b), when the property pledged, hypothecated, or charged, is of such a nature as to render it impossible or difficult otherwise to enforce the security, as when a Railway Company's undertaking was pledged "as a going concern" by a certain form of Debentures (c), which prevented his taking it in execution (d); or where stock subject to a charge was in the hands of trustees (e). The principle of these decisions applies when pawns are subject to successive charges, or are, by the contract, likely to be let to hire, or otherwise entrusted to third parties.

A defendant, as well as a plaintiff, may obtain the appointment of a receiver (ƒ). The remedy by Receivership was deemed "just and convenient," when a defendant, in possession of hypothecated goods, refused to execute a bill of sale to secure advances made on a parol agreement to give such security (g); when unpaid purchase money was charged on printing plant in defendant's possession by a deed not registered as a bill of sale (h); when an unpaid vendor was carrying on the business of a Company in voluntary liquidation (i); and when the plaintiff sought to enforce equitable right to property the nature of which

(a) Jefferys v. Dickson, L.R. 1 C.A. 183. Exp. Warren, re Joyce, L.R. 10 C.A. 222, 32 L.T. N.S. 288, 23 W.R. 401.

(b) 36 & 37 Vict., cap. 66, sec. 24, sub-sec. 8.

(c) Gardner v. London, Chatham & Dover Railway Coy., L.R. 2 C.A. 201. (d) Anglo-Italian Bank v. Davies, L.R. 9 Ch. D. 275, 47 L.J. 836 Ch. D., 39 L.T. N.S. 244, 27 W.R. 3 (in C.A.).

(e) Bryant v. Bull, L.R. 10 Ch. D. 153, 48 L.J. 325 Ch. D., 39 L.T. N.S. 27 W.R. 470, 246.

(f) Sargant v. Read, L.R. 1 Ch. D. 600, 45 L.J. 206 Ch. D. (g) Taylor v. Eckersley, L.R. 2 Ch. D. 306, 45 L.J. 527 Ch. D., 34 L.T. N.S. 637, 24 W.R. 450 (in C.A.).

(h) Edwards v. Edwards, L.R. 1 Ch. D. 454, 33 L.T. N.S. 633, 24 W.R. 201. (i) Boyle v. Bettws Llantwit Colliery Coy., L.R. 2 Ch. D. 726, 45 L.J. 718 C.D., 34 L.T. N.S. 844.

rendered it difficult or impossible to obtain execution under a writ of fi-fa or elegit (a).

The Court may appoint the plaintiff himself to be receiver in the action (b), or may put him under terms to deal with the property only under direction of the Court, and abide by its order as to damages or otherwise (c).

The receiver is not duly constituted till he has given security, if such be required by the order appointing him (d).

On just and sufficient reason, as where [a pawn or other] property in dispute cannot be kept without cost, (as a horse), the Court may order it to be sold at once, and the proceeds to be paid into Court to abide the event (e).

The mortgagee's remedy by consolidation of securities is not, in the absence of express contracts, available to the pawnee (f). And where there is such a contract, the right thereby given will be subject to the same qualifications as that of the mortgagee, in whose favour there will be no consolidation when one mortgage has been transferred, or has otherwise ceased to exist in the hands of the mortgagee seeking to consolidate (g), nor unless there be default in payment on all the mortgages, nor when the mortgagors are different (h). Nor can consolidation be carried so far

(a) Nothard v. Proctor, L.R. 1 Ch. D. 4, 45 L.J. 302 Ch. D., 33 L.T. N.S. 709 (in C.A.). Anglo-Italian Bank v Davies, L.R. 9 Ch. D. 275, 47 L.J. 833 Ch. D., 39 L.T. N.S. 244, 27 W.R. 3 (in C.A.). Bryant v. Bull, L.R. 10 Ch. D. 153, 48 L.J. 325 Ch. D., 39 L.R. N.S. 470, 27 W.R. 246. (b) Hyde v. Warden, L.R. 1 Ex. D. 309, 25 W.R. 65 (in C.A.). (c) Taylor v. Eckersley, supra. (d) Edwards v. Edwards, supra. (e) Under Judicature Acts, Order LII., r. 2. Bartholomew v. Freeman, L.R. 93 B.C.P.D. 316, 38 L.T. N.S. 814, 26 W.R. 743. (f) Latham v. Chartered Bank of India, L.R. 17 Eq. 205, 43 L.J. 612 Bk., 29 L.T. N.S. 795, ante, p. 85.

(g) Re Raggett, L.R. 16 Ch. D. 117.

(h) Cummins v. Fletcher, L.R. 14 Ch. D. 699, 49 L.J. 563 Ch. D.,

N.S. 859, 28 W.R. 772 (in C.A.).

42 L.T.

as to justify appropriation of surplus on sale of pledged goods to pay an unsecured simple contract debt, or a debt secured by mortgage of land, by the surplus of goods seized under a Bill of Sale (a), or to defeat a second charge by taking a third with notice of the second charge (b), nor by custom of trade, to add a simple contract debt to the mortgage to the prejudice of puisne incumbrancers (c). There must be an express contract for such a purpose (d).

Under some circumstances, and to a limited extent, the pawnee may indirectly obtain the effect of consolidation. If the pawnor should sue for surplus on the sale of one pawn, the pawnee may set off or counter claim for deficit on the sale of another at any time before action. If the pawn be within the Pawnbrokers' Act, the deficit and surplus must have arisen within 12 months of each other (e). If the pawnor claim damages for not delivering a pawn upon proper application to redeem, the pawnee cannot set off deficit, as that remedy is only applicable when both plaintiff and defendant claim liquidated damages. He may, however, counter claim for the amount of such deficit, though with some disadvantage, because, upon wrongful refusal to deliver, he becomes liable for the full value of the pawn, less only the debt secured thereby (ƒ).

If the action be to enforce specific delivery of the pawn, the debt due from the pawnor will be no answer to the

(a) Chesworth v. Hunt, L.R. 5 C.P.D. 266, 49 L.J. 507, 42 L.T. N.S. 774. Castle v. Downton, L.R. 5 C.P.D. 56, 49 L.J. 6 C.P., 41 L.T. N.S. 528,

28 W.R. 257.

(b) Baker v. Gray, L.R. 1 Ch. D. 491, 45 L.J. 165 Ch., 33 L.T. N.S. 721, 24 W.R. 171.

(c) Daun v. City of London Brewery Coy., L.R. 8 Eq. 155.

(d) Menzies v. Lightfoot, L.R. 11 Eq. 459, 40 L.J. 561 Ch., 24 L.T. N.S. 695, 19 W.R. 578 (M.R.).

(e) 35 & 36 Vict., cap. 93, sec. 22.

(f) See ante, Cap. XI., ON THE Redemption—and Cap. XII., ON THE

SALE OF THE PAWN.

claim itself, but the pawnee may recover judgment for the amount due, and for such costs as are thereby incurred, which, as well as the debt, will be available to reduce or extinguish any costs to which the plaintiff may be entitled (a).

Questions between successive incumbrancers, will be determined by the rule, qui prior est in tempore, potior est in iure (b), unless there be negligence, bad faith, or other circumstances, which give a better equitable right to the later one (c). Thus, when A. borrowed £2,500 from B. on the security of an advowson, and afterwards £1,000 from C. by deposit of the title-deeds relating thereto, which were in his possession pending completion, the first mortgagee took precedence of the second (d). Contra, when a banker had, without notice, lent money on titledeeds, included in a covenant to convey the property to the trustees of a settlement (e), who had left them in the settlor's possession:-also, when the mortgagee lent titledeeds to the mortgagor for the purpose of raising a further loan upon them, telling him to inform the proposed lender of the mortgage. The mortgagor promised, but failed, to do this, and the bankers consequently advanced a large sum. Their title prevailed against the mortgagee, who had thus innocently enabled the mortgagor to obtain the money (f), for a mortgage or pledge implies a covenant by

(a) See ante, Cap. XI., ON THE REDEMPTION-and Cap. XII., ON THE SALE OF THE PAWN.

(b) Re Barraud, exp. Cochrane, L.R. 4 Ch. D. 23, 46 L.J. 38 Bk., 35 L.T. N.S. 422, 25 W.R. 65 (in C.A.).

(c) Calisher v. Forbes, L.R. 7 C.A. 109, 41 L.J. 56 Ch. D., 25 L.T. N.S. 772, 20 W.R. 853. Newton v. Newton, L.R. 6 Eq. 135, 4 C.A. 143. (d) Layard v. Maud, L.R. 4 Eq. 397.

(e) Maxfield v. Burton, L.R. 17 Eq. 15, 43 L.J. 46 Ch. D., 29 L.T. N.S. 571, 22 W.R. 148 (M.R.).

(f) Briggs v. Jones, L.R. 10 Eq. 92, 22 L.T. N.S. 212 (M.R.).