him" (a), the pawnee is entitled to retain possession of the pawn until the debt [or obligation] is paid [or fulfilled]. Till that is done, his special property continues and his right to possession remains. The extent of special property will be limited by the debt or obligation, the payment or fulfilment whereof the pawn was intended to secure. If the pawnor pays the debt, or fulfils the obligation, the pawnee cannot lawfully retain the pledge merely because other debts are due to him by the pawnor (5). To justify continued detention under such circumstances, there must be a contract whereby the pawnee is entitled to hold the pledge as a security, not only for a particular loan, but for antecedent or subsequent advances.

In this respect, the pawnee's position is less advantageous than that of the mortgagee, for if the owner of different estates mortgage them to one person for distinct debts, or successively to secure the same debt, or the same debt with further advances, the mortgagee may insist that one security shall not be redeemed alone (c), and may exercise this right even against the trustees of a bankrupt or liquidating mortgagor (d). He may apply a surplus arising on the sale of one estate, towards payment of the debt secured by the mortgage of another (e). And if his security is available only against one estate, which, together with other estates, is subject to charges in favour of other mortgagees, he is entitled in equity to marshal the other securities, so that they may fall primarily on the estate in which he is not interested, and thus

(a) Coggs v. Bernard, Ld. Raym., 909, 2 Smith's L.C., 7th edit., 188. (b) Green v. Farmer, 4 Burr., 2214; Walker v. Birch, 6 T.R. 258; Vanderzee v. Willis, 3 Bro. C.C., 20; Jones v. Smith, 2 Ves. jr. 372, 376. (c) 2 Fisher on Mortgage, 630, citing Shuttleworth v. Laycock, 1 Vern., 245 ; Pope v. Onslow, 2 Vern., 286 n. 1; Jones v. Smith, 2 Ves., jr., 372, 376. (d) Exp. Alsager, 2 M.D. & D., 328; Baker v. Harris, 16 Ves., 397; Pope v. Onslow, 2 Vern. 286.

(e) Selby v. Pomfret, 1 J. & H., 336, 3 De G., F. & J., 595.

give him the full benefit of his security. But if a creditor have two funds to which he may resort, he shall take to that which, paying him, shall leave another fund for another creditor (a). For the mortgagee is the legal owner of the mortgaged estate, and the mortgagor, having only an equitable right to redeem, must do so on terms which save the mortgagee harmless, and ensure payment of all his advances, interest and costs. These are among the ordinary incidents of a mortgage, which equity has impliedly attached to it by the manner in which it has interpreted the mortgagor's duty in fulfilling his obligation.

The pawnee's rights are not so extensive. He has not an absolute, but a special and qualified property in the pawn, of which the pawner continues to be the true owner, subject only to the payment according to the terms of his contract. Hence the pawnee's right to retain the pledge is governed by the principle laid down by Lord Eldon (b) with respect to a deposit of title deeds and stock certificates, viz., that the agreement made upon deposit, must prima facie determine the purpose of the deposit.

If the deposit were for a particular purpose, the thing deposited [or pledged] is a security for that purpose only. The original purpose may, however, be enlarged by subsequent contract, without going through the form of putting the pledge back into the hands of the owner, and then re-delivering it to the pledgee or depositary. Such a contract may be made without express words. It may be implied from the custom of trade, from course of dealing, or from surrounding facts and circumstances. When goods are delivered for a particular purpose, as corn to be

(a) Aldrich v. Cooper, 8 Ves., 382.

(b) Exp. Ockendon, re Matthews, 1 Atk., 235; Green v. Farmer, 4 Burr., 2214; Jones v. Smith, 2 Ves. jr., 372, 378.

ground, the miller has only a particular lien for the cost of grinding each specific parcel (a). On the other hand, by virtue of trade usage, a packer has a lien for the whole amount due to him, which he may enforce against each quantity of goods that comes into his possession (b). In like manner, pawnor and pawnee may expressly or tacitly agree that the pledge shall be held as security, not only for advances made upon delivery, but for any antecedent, accessorial, or subsequent advances, in which event the pawnee's special property will be co-extensive with the new engagements (c). Therefore, when a pawnee advanced a comparatively small sum on jewels of considerable value, and two days afterwards took a promissory note for a further sum, Lord Chancellor Harcourt, after deliberation, held that the pawnor must pay the sum due on the note as well as the prior advances, because possession of the pledge might have been the inducement to him to lend (d). But this decision is of very doubtful authority. If the pawnce may have trusted to the pledge, when advancing money on the note, the pawnor may never have intended to charge the jewels with the second advance, in which event the pawnee would secure the benefit, and the pawnor would bear the burden, of a contract which was never made. And the decision is questionable on a much broader ground, which appears to have escaped notice. The plaintiff had pledged his jewels for £110 with one Knight, who re-pledged them with the defendant for £200, and afterwards borrowed from defendant £36 and £50 on two promissory notes, so that Knight, whose interest in the pawn was limited to £110, pledged it for £286, and was allowed to charge the

(a) Green v. Farmer, 4 Burr. 2214.

A similar

(b) Exp. Deeze, 1 Atk., 228; Green v. Farmer, 4 Burr., 2214. custom has been found to exist in favour of dyers: Downman v. Matthews, Prec. Ch. 580; Savill v. Blanchard, 4 Esp. 53.

(e) Story on Bailments, sec. 304. (d) Demainbray v. Metcalfe,2 Vern.,690,698.

real owner with the payment of £286, though it is now well settled (a) that a pawnor whose pledge has been re-pledged by his pledgee, is entitled to redeem on tendering the amount due by him to his original pawnor, and is not bound to pay that pawnor's debts in order to get possession of his own property.

An agreement to make the pledge available as a security for subsequent advances to the pawnor, may be proved by parol evidence, aided by probability of intention (b). Thus, course of dealing between the parties, or custom of trade, will suffice, because a jury may reasonably presume that the parties had their prior dealings or the trade custom in mind, and dealt with reference thereto as, when a customer of a Bauk kept three accounts, and made a deposit to secure an over-draft on one of them, the Bankers were held entitled to the benefit of the deposit as a security for the balance due to them on all three accounts (c). But "understanding" alone, unless fairly amounting to an agreement, will not do (d). Nor will custom be allowed to override an express contract with which it is inconsistent, as such a contract excludes the custom (e). Thus, where bankers had had securities deposited as a pledge for £1,000, Lord Thurlow held that they had no lien thereon for other debts which had accrued while the pledge was in their hands (ƒ), laying some stress upon the fact that the parties contesting the right to tack, were the pledgor's general creditors, on whose behalf a bill had been filed, and a decree made, so

(a) Donald v. Suckling, L.R., 1 Q.B. 585, 7 B. & S., 783, 35 L.J., 232 Q.B., 14 L.T., N.S., 772, 15 W.R., 13; Halliday v. Holgate (in Ex. Ch.), L.R., 3 Ex., 299; 37 L.J., 174 Ex.; 18 L.T., N.S., 656; 17 W.R., 13. (b) Demainbray v. Metcalfe, 2 Vorn. 690, 698; exp. Kensington, 2 V. & B., 79. (c) Ibid. Rushforth v. Hadfield, 7 East., 224.

(d) Re European Bank, exp. Agra Bank, L.R. 8 C.A. 41; 27 L.T. N.S. 732; 21 W.R. 45. (e) Jarvis v. Rogers, 15 Mass. (U.S.) R., 389. (ƒ) Vanderzee v. Willis, 3 Bro. C.C., 21, followed and approved by Grant M.R., in Adams v. Claxton, 6 Ves., 225.

that the pawnor's right to redeem had passed to his creditors as assignees for value, against whose equity of redemption the pawnee was not allowed to tack his subsequent advances.

In a very recent case, a pawnee who was in peril of loss through misfeasance on the part of his agent, was allowed to marshal his debtor's securities in the same way as a mortgagee, thus securing the repayment of his advances, for which the pledge would otherwise have been insufficient (a).

As the pawnee derives his special property from the pawnor, he will in general acquire no better title to the pawn than the pawnor possessed. Traditio nihil amplius transferre debet, vel potest ad eum, qui accipit, quam est apud eum qui tradit. Si igitur quis dominium in fundo habuit, id tradendo transfert; si non habuit, ad eum qui accipit, nihil transfert (b). Hence the owner of a stolen chattel may recover it from a purchaser or pawnee who has acquired it bona fide and for value (c), even when the real owner has parted with possession on what is known as the Hire-Purchase system, under which the heir Servizio acquires no property in the goods until payment of the last periodical instalment (d).

The rule just stated is subject to exception in favour of bona fide pawnees of negotiable instruments, such as Bills of Exchange (e), bonds transferable by delivery or indorse

(a) Exp. Alston, re Holland, L.R., 4 C.A., 168; 19 L.T., N.S., 542; 17 W.R., 266. (b) Dig. Lib., 41, tit. 1, sec. 20. (e) White v. Spettigue, 13 M. & W., 603. Lindsay v. Cundy (in C.A.), L.R., 2 Q.B.D., 96; 46 L.J., 233 Q.B.; 36 L.T., N.S., 345; 25 W.R., 417; 13 Cox's C.C., 583; (in H.L.), L.R. 2 Ap. Ca., 459; 47 L.J., 481 Q.B.; 38 L.T., N.S., 573; 26 W.R., 406; 14 Cox's C.C., 93, reversing jmt. of Q.B.D. in S.C. L.R. 1 Q.B.D. 318; 45 L.J. 381 Q.B.; 34 L.T. N.S. 314; 24 W.R. 730. (d) Singer Sewing Machine Coy. v. Clark, L.R., 5 Ex. D., 37; 49 L.J., 224 Ex. ; 41 L.T., N.S., 591; 28 W.R., 170.

(e) Currie v. Misa, L.R., 10 Ex., 153 (Ex. Ch.); 1 Ap. Ca., 554 (in H.L.), 44 L.J., 91; 45 Tb., 852 Q.B.; 35 L.T., N.S., 414; 23 W.R., 450; 24 W.R., 1049.