Page images
PDF
EPUB

The same result follows if a pledgee is induced to part with possession by a fraudulent statement on the part of his pledgor (a). Such possession might have been revoked by the principal as having been obtained by fraud, so long as the goods remained in the agent's hands; but a bona fide transferee for value paid before such revocation, acquires an indefeasible title (b). When, of two innocent parties, one must suffer from the fraud of a third, the loss must fall on the one who enabled the fraud to be committed (c).

Questions as to entrustment and intention to entrust appear to be excluded in the case of vendors and vendees within the Act of 1877. If there has been a real contract of sale or purchase, the entrustment, so far as third parties. are concerned, would seem to be complete, even if the contract should be voidable as induced by fraud. Thus a vendor, or any person on his behalf, who continues in possession of the documents of title to goods sold [by him] is, quà a pawnee without notice that the goods have been sold, a person entrusted by the vendee with such goods or documents (d).

A vendee, or any person on his behalf, who obtains possession of documents of title to goods he has bought or contracted to buy, is quà a pawnee without notice of the vendor's lien or other right, a person entrusted by the vendor with such documents (e).

(a) Babcock v. Lawson, L.R., 4 Q.B.D., 394; 48 L.J., Q.B., 524; 27 W.R., 886. (b) Per Cockburn, C.J., in Babcock v. Lawson, ut supra. (c) Ibid.-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; approving Pochin v. Robinows, 3d Court of Session R., vol. 7, 622. Root v. French, 13 Wendell, 570.

(d) 40 & 41 Vict., cap. 39, sec. 3. This section is a legislative reversal of Johnson v. Crédit Lyonnais Coy., L.R., 2 C.P.D., 224; 3 Ib., 32 (in C.A.), 47 L.J., C.P., 241; 36 L.T., N.S., 253, 37 Ib., 657; 25 W.R., Dig. 220; 26 W.R., 195; where the plaintiff, a vendee, recovered against the defendants, who had advanced money upon the security of documents of title, which the plaintiff had allowed to remain in the vendor's possession after the goods had been bought and paid for.

(e) 40 & 41 Vict., cap. 39, sec. 4.

A pledge by an agent is not protected by the Acts when made for his own antecedent debt, without any present advance (a), but will be good when made in consideration of an advance intended to cover prospective liability to buying brokers, on a purchase previously made by them on the agent's credit, which must eventually have ripened into a debt, under which the brokers had refused to deliver without security (b). The onus of proof is on the person who avers that the pledge was made for an account current, and not for a specific advance (c). But if the contract shows that the deposit was made to secure a specific sum, a general lien by custom of bankers or otherwise is excluded, for modus et conventio vincunt legem (d). A fortiori, when documents were transmitted to Bankers in this country by a merchant abroad, upon the expectation that they would deal with them on the footing and in the manner indicated by the letter which enclosed them, the bankers, after refusing the proposed contract, cannot make such possession of the documents available as against a principal or joint adventurer (e).

An agent entrusted with documents, who has pledged them to satisfy a general lien and a particular advance by A., has still sufficient possession of the documents to make a further pledge with B., which will be good against the principal for the residue of the value (ƒ).

The true owner of goods, &c., pledged within the Factors' Acts may redeem the pledge as if he were the actual

(a) Macnee v. Gorst, L.R., 4 Eq., 315; 15 W.R., 1197.

(b) Jewan v. Whitworth, L.R., 2 Eq., 692, 36 L.J., 127 Ch.; 14 W.R., 1020. (c) Re Boys, Eedes v. Boys, Exp. Hop Planters' Coy., Lmd., L R., 10 Eq., 467 ; 19 W.R., Dig. 92.

(d) Wylde v. Radford, 33 L.J., 51 Ch.; 9 L.T., N.S., 471; 12 W.R., 38. (e) Robey v. Ollier, L.R., 7 C.A., 695; 20 W.R., 956. (f) Portalis v. Tetley, L.R., 5 Eq. 140, 37 L.J., 139 Ch.; 17 L.T., N.S., 344 ;

16 W.R., 503.

pawnor (a), and prove against the agent's estate for the sums paid for redemption (b), or set off such payments against any debt due by him to the agent (c). He may also claim the surplus proceeds of the pledge when sold (d). And as all his remedies are preserved, he is entitled to marshal the agent's assets as in bankruptcy, so as to give him a lien upon the surplus proceeds of the goods. pledged (e).

An agent who fraudulently pledges his principal's goods or documents of title is guilty of a misdemeanour (ƒ), punishable with 7 years' penal servitude.

In Reg. v. Wollez and Bliss, in re Hart (g), Mr. Commissioner Kerr held that a Court before which an agent is convicted of stealing his principal's goods, may make a summary order for their restitution to the principal, on the ground that the Factors' Acts have given a bona fide pledgee no better title than would be acquired by a bona fide purchaser in market overt, upon whom an order of restitution. under 7 and 8 Geo. 4, cap. 29, sec. 57, or 24 and 25 Vict., cap. 96, sec. 100, might certainly be made. The words of the Factors' Acts, however, seem too strong to justify this decision, if the agent has been "entrusted" within the meaning of the Acts.

(a) 6 Geo. 4, cap. 94, sec. 6. (b) 5 & 6 Vict., cap. 39, sec. 7.

5 & 6 Vict., cap. 39, sec. 7. (c) 6 Geo. 4, cap. 94, sec. 10. (d) 5 & 6 Vict., cap. 39, sec. 7. (e) Exp. Alston, re Holland, L.R., 4 C.A., 168; 19 L.T., N.S., 542;

17 W.R., 266.

(ƒ) 6 Geo. 4, cap. 94, sec. 7. 5 & 6 Vict., cap. 39, sec. 6. 24 & 25 Vict., cap. 96, secs. 75, 76, 77, 78. Reg. v. Cooper, L.R., 2 C.C., 123; 43 L.J., 89 M.C.; 20 L.T., N.S., 306; 22 W.R., 555.

(g) 8 Cox's C.C., 337.

[merged small][merged small][merged small][ocr errors]

CHAPTER VI.

OF THE PAWNOR; HIS TITLE TO, AND PROPERTY IN THE PAWN.

As pawning is merely the delivery of a chattel as security for the payment of a debt or the fulfilment of an engagement (a) the pawnor is not thereby divested of, nor is the pawnee thereby invested with, the general property in the thing pawned. The pawnor continues to be the owner of the thing pledged, subject only to the special property which the pawnee acquires therein by virtue of his contract with the pawnor (b), for (c) "pledging does not make an absolute property, but is a delivery only till payment, &c., and may be re-demanded at any time upon payment of the money; for it is delivered only as a security for the money lent; and there is a difference between the mortgaging of land and pledging of goods for the mortgagee has an absolute interest in the land, whereas the other has but a special property in the goods, to detain them for his security. The delivery is nothing but the bare custody, and it is not like to a mortgage, for there he that has interest ought to have the money, but in the case of a pledge, it is only a special property in him that takes it, and the general property continues in the first owner, quod non fuit negatum" (d). Therefore, upon tender by the pawnor or his executor, of the money lent upon the pawn, the property, notwithstanding the refusal

(a) Ante, cap. 1, p. 27.

(b) Coggs v. Bernard, 2 Lord Raym., 909, 1 Smith's L.C., 7th edit., 188, 201; 2 Salk. 522; Com. Dig., tit. Mortgage, A.

(c) Per Fleming, C.J., in Radcliff v. Davis, Cro. Jac. 245, Yelv., 178, Viner's

Abr., tit. Pawn, 263.

(d) Ibid.

[of the pawnee to redeliver], is reduced instantaneously to the pawnor, &c., without claim, but per curiam, the executor shall have debt for money against the pawnee, for upon the redemption it remains a duty (a).

As a pawnor must be the owner of the thing pawned, or of some interest therein (b) a bailee of goods for safe custody only, or otherwise as "a bare naked bailment for the use of the bailor," though having sufficient right to the goods to assert a title against a wrong doer, has no such property in the goods as will enable him to pawn them as against the bailor. If such goods be so pawned, the bailor may recover them from a pawnee who has advanced his money on them bond fide and without notice (c). This rule is not affected by the Factors' Acts, for such a bailee is not "a person entrusted" within the meaning of those Acts (d).

A pawnor having a limited interest in a chattel may pledge it, but only to the extent of that interest. Therefore, when a testator left plate to his widow for her life, with remainder to trustees for other persons, the pledge was good during the widow's life, but after her death the remainder man recovered the plate from the pawnee without paying the advances thereon (e). Before the Factors' Acts, Lord Kenyon, C.J., sitting at Nisi Prius, held that if a factor pledged goods on which he had a lien, the pledge was good against the true owner for the amount of the lien, though this ruling was disapproved by the full Court (f), on the ground that liens were personal, and could not be transferred by any tortious act, such as an unauthorized

(a) Ratcliff v. Davis, Cro. Jac., 245, Yelv. 178, Viner's Ab., tit. Pawn, 263. Isaack v. Clark, 2 Bulst. 309. (b) Ante p. 49.

(c) Hartopp v. Hoare, 3 Atk., 44, Com. Dig., tit Mortgage, (B). Ratcliff v. Davis, Yelv. 178. (d) see Ante, cap. 5. (e) Hoare v. Parker, 2 T. R., 376. (f) In Daugbigny v Duval, 5 T. R., 604.

« EelmineJätka »