The Courts of this country have no jurisdiction, except by consent of the defendants, to entertain an action against the agents of a foreign government, with reference to a contract of pawn made by them in this country, on behalf of their principals (a). (a) Twycross v. Dreyfus, L.R., 5 Ch. D., 605; 46 L.J., Ch., 510; 36 L.T., N.S., 752. CHAPTER IV. OF THE PAWNOR. As a pawn is the delivery of a chattel by way of security for the payment of a debt or the fulfilment of an engagement (a), the term pawnor is properly applicable to that party to the contract, the payment of whose debt, or the fulfilment of whose obligation, the delivery of the pawn is intended to secure. But as "delivery is of the essence of an English pawn" (b), the word is often used to describe "the person depositing a pawn" (c). In this more limited sense, the interpretation clause of the Pawnbrokers' Act, 1872, provides (d) that "Pawner means a person delivering a pawn to a Pawnbroker." Such person must not be apparently under the age of 12 (e), or 16 in the City of London (f), the Metropolitan Police District (g), and in some large towns governed by special Police Acts. The pawner as above defined, is liable to penalties if he pawns goods without the owner's authority (h); if he offers goods in pawn, not being able to give a satisfactory account of the means by which he obtained them (i) or of their ownership; or if he makes a false statement as to the name and address of himself, or of the owner of the thing so offered (). When the term is used to describe a party to the contract, and not a mere agent for delivering the pawn, the pawnor (a) Story on Bailments, sec. 286. (b) Ante, cap. II., "OF THE MANNER OF PAWNING." Ryall v. Rolle, 1 Atk., 165. (c) Wharton's Law Lexicon, by Will, tit. Pawnor. (d) 35 & 36 Vict., cap. 93, sec. 5. (e) 35 & 36 Vict., cap. 93, sec. 32, sub-sec. 1. (f) 2 & 3 Vict., cap. xciv., sec. 34, coupled with 35 & 36 Vict., cap. 93, sec 57. (g) 2 & 3 Vict., cap. 47, sec. 50. (h) 35 & 36 Vict., cap. 93, sec. 33. (k) Ibid, sub-sec. 2. (i) 35 & 36 Vict., cap. 93, sec. 34, sub-sec. 1. must, subject to the exceptions noticed below, possess some property in the pawn (a). This property need not be absolute. It may be qualified only, as that of a pawnee by whom the pawn is re-pledged with a sub-pawnee (b). But in such case, the title of the sub-pledgee will only be valid as against the original pawnor, to the extent of the obligation of the latter to the sub-pawnor, the original pawnee (b). A person may be a pawnor, though he has but the bare possession of a chattel, without absolute or qualified property in it, or lawful authority to pledge it. As between. himself and his pawnee, the pledge will bind, and he cannot reclaim it without discharging his obligation, for it does not lie in his mouth to assert himself not to be the owner (c). But the true owner may generally reclaim such a pledge, even from a pawnee who has advanced money in good faith, and without notice of the fraudulent pawnor's lack of title (d). The rule that a pawnor can only pledge to the extent of his own interest in the pawn is subject to exception in favour of the pawnee, when the pawnor is a Factor or agent within the meaning of the Factors' Acts (e). Within the limits defined by those Statutes, factors, brokers, and other persons engaged in certain classes of mercantile 234 235 transactions, may make valid pledges of goods in which they have no property whatever. They may also pledge absolutely, goods in which they have only a right of lien, or some other limited interest (ƒ). (a) See also post, Cap. V., "OF PLEDGES BY FACTORS, BROKERS AND OTHERS." (d) Ante, p. 37; post, caps. V. & VII. (e) 4 Geo. 4, cap. 83. 6 Geo. 4, cap. 91. 5 & 6 Vict., cap. 39. 40 & 41 Vict., (f) See post, Cap. V. cap. 29. E As a party to the contract, the pawnor should be of full age, and free from legal disability. Infants, married women, lunatics, and non compotes mentis, cannot make valid pledges. An infant is accounted in law until he passeth the age of 21 years (a), for "the law hath provided for the safety of a man's or woman's estate, that before their age of 21 years, they cannot bind themselves by any deed, or alien any land, goods or chattels " (b). Until recently, as an infant's contracts were not void, but voidable only, he might ratify them on attaining full age (c), provided he did so voluntarily (d), with full knowledge and complete information regarding the transaction (e), with intent to bring himself under legal obligation, and not merely to admit a debt of honour (ƒ), or that the items of an account were correctly stated (g), and provided also that the ratification were made by writing sufficient to satisfy the requirements of Lord Tenterden's Act (h). But now, by the Infants' Relief Act, 1874 (i), all contracts entered into by Infants after August 7th, 1874, for the repayment of money lent, or to be lent, and all accounts stated with infants are absolutely void. Nor can any action be maintained upon any promise or ratification of such contracts, made after full age, even if there be a new consideration for such promise or ratification (k). This statute makes a contract by an infant to repay money borrowed, a contract to pay a (a) Co. Lit. 78 b., 245 b. (b) Co. Lit. 171 b. (c) Williams v. Moor, 11 M. & W., 256. 12 L.J.. 253 Ex. (d) Harmer v. Killing, 5 Esp. 102. (e) Kay v. Smith, 21 Beav. 522. (f) Maccord v. Osborne, L.R. 1 C.P.D., 568; 45 L.J., 727 C.P.D., 35 L.T., N.Ş., (g) Rowe v. Hopwood, L.R. 4, (h) 9 Geo. 4, cap. 14, sec. 5. 24 L.J., 62, Q.B. 164; 25 W.R., 9. Q.B. 1. 38 L.J., 1 Q.B. 1. 19 L.T., N.S., 261; Willins or Williams v. Smith, 4 E. & B., 180. (i) 37 & 38 Vict., cap. 62, sec. 1. debt for which there is no consideration. Such a contract is incapable of ratification, and a petition in bankruptcy founded thereupon was dismissed (a), though the debtor had suffered judgment by default in an action in respect of the same debt. Therefore it would seem that as money paid to an infant pawnor forms no legal consideration for a contract, the pawnee will acquire no property in the pawn, and the infant may maintain an action to recover it without repaying the money (b). But an indorsee [or pledgee] for value, and without notice, may still recover on a bill of exchange accepted after full age, for debts incurred during infancy (c). As contracts for necessaries are exempted from the operation of the Act (d), a pledge by an infant to secure payment of money due by an infant pawnor, for necessaries supplied by the pawnee, will be valid. And as a person who finds money to provide an infant with necessaries, which money is afterwards properly expended for that purpose, is entitled to stand in the place of the tradesman who supplies them (e), a security for advances for such a purpose has been held good, but only for the amount actually advanced and interest at 4 per cent. (ƒ). An infant's fraudulent representation that he is of full age will not render him liable upon his contracts, because such an averment is contained in every contract (g). At Common Law, a married woman can neither make a contract nor possess property, apart from her husband (h). (a) Exp. Kibble, re Onslow, L.R., 10 C.A., 373; 44 L.J., 63, Bk. ; 32 L.T., N.S., 138; 23 W.R., 433. (b) Latt v. Booth, 3 C. & K., 292. (c) Belfast Banking Coy. v. Doherty, L.R., 4 Ir., Q.B., 124. (d) 37 & 38 Vict., cap. 62, sec. 1. (e) Marlow v. Pitfield, 1 Peere Wms. 558. (ƒ) Per Jessell, M.R., Martin v. Gale, L.R., 4 Ch., D. 428; 46 L.J., 84 Ch.; 36 L.T., N.S., 357; 25 W.R., 406. (9) Gore v. Nevil, cited Sid., 258. Johnson v. Pye, Sid., 258. Lempriere v. Lange, L.R., 12 Ch. D., 675; 41 L.T., N.S., 378; 27 W.R., 879. (h) Co. Lit. 112a, Com. Dig. tit. Baron & Feme, Q. (1). |