ment (a), Bills of Lading (b), or Debentures payable to bearer (c), who will take free from any equities by which the pawnor might have been affected, unless those equities are preserved by the instrument itself (d). But the unauthorised pledge of non-negotiable securities will be invalid as against the real owner, nor can an alleged custom of bankers be relied on to validate such a pledge, when made to a banker by his customer (e). 18.30 Under the Pawnbrokers' Act, 1872, a pawnee of goods to which the pawnor had no title, will acquire a right to be repaid his advances if the real owner makes a declaration of ownership in the manner prescribed by the Act, and applies to redeem by virtue thereof, thus adopting the contract made by the malá fide pawnor (f). He may also, if the owner obtains an order for the delivery of such a pawn, either on the pawnor's conviction for unlawful pawning (g), or for stealing the pawn (h), or without conviction, if unlawful pawning be proved (i), become entitled to full or partial payment of the loan. But the owner is not bound to adopt either of these (a) Goodwin v. Robarts, L.R., 10 Ex., 153; 44 L.J., 57 Ex. ; 32 L.T., N.S. 199; 23 W.R., 542 (In Ex. Ch.), L.R. 10, Ex. 337; 44 L.J., 157 Ex.; 33 L.T., N.S. 272; 23 W.R., 915 (In H.L.); L.R., 1 Ap. Ca. 476; 45 L.J., 748 Ex., 35 L.T., N.S. 179; 24 W.R., 987. (b) Nathan v. Giles, 5 Taunt., 558; 1 Marsh, 226. Coventry v. Gladstone, L.R., 4 Eq., 493; 37 L.J., 492 Ch.; 16 W.R., 304; The Argentina, L.R. 1 Adm. 370; 16 L.T. N.S. 743. (c) re Blakeley Ordnance Company, ex parte New Zealand Banking Corpora tion, L.R., 3 C.A., 154; 37 L.J., 418 Ch.; 18 L.T., N.S., 132; 16 W.R., 533; re Northern Assam Tea Company, ex parte Universal Life Assurance Company, L.R., 10 Eq., 458. Imperial Land Company of Marseilles, L.R., 11 Eq., 487; 40 L.J., 93; 343 Ch.; 23 L.T., N.S. 515; 24 Ib., 255; 19 W.R., 223. (d) Re Natal Investment Company, exp. Financial Corporation, L.R., 3 C.A., 355; 37 L.J., 362 Ch.; 18 L.T., N.S. 171; 16 W.R., 637. Re General Estates Coy., exp. City Bank, L.R., 3 C.A., 758; 18 L.T., N.S. 457, 894; 16 W.R., 919. (e) Leese v. Martin, L.R., 17 Eq., 224; 43 L.J., 193 Ch.; 29 L.T., N.S., 742 ; 22 W.R., 230. (f) 35 & 36 Vict., cap. 93, sec. 29, sub-secs. 1, 2, 4. See post. Cap. XVIII— ON THE REMEDIES OF THE PARTIES. (9) Under 35 & 36 Vict., cap. 93, sec. 30, sub-sec. 1. (i) Ibid, sub-sec. 3. (h) Ibid, sub-sec. 2. courses. He may sue in the County Court, or elsewhere, Land when he will be entitled to recover, by the strength of has heen made unders. 30 is without his Consent it wit:ve no his own title, without any payment to the Pawnbroker (a). to them bringing an If several separate chattels are included in one pledge, action for the delivery th I to Toods - see Snider the pawnee acquires a special property in them all. Si - Curryman (707, 237~444 debitur res suas duobus simul pignore obligaverit, ita ut utrique in solidum obligatæ essent (1). Qui pignori plures res accepit, non cogitur unam liberare, nisi accepto universo, quantum debetur (c). He may retain them all, or, when the period of redemption has expired, may sell some of them from time to time, until his claim is discharged (d), for the pawn is a security for the whole and every part of a debt or engagement; and payment or satisfaction of a part, leaves it still liable for the residue (e). This liability, and the pawnee's special property which results therefrom, will continue, though some of the things pledged should perish without his default, and even if the pawn should wholly perish, he may still sue for his debt (ƒ). The pawnee's special property in the pawn, with its attendant incidents, will be the same whether the pledge is made to secure the advances or obligations of the pawnor, or those of third persons for whom he has become guarantor (g). And such special property will extend to, and be answerable for, the payment of all reasonable incidental charges and expenses. It does not necessarily involve an obligation to pay interest. The contract of pawn is a simple contract, the debts it secures are usually simple contract debts, which only carry interest (a) 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. (d) Ratcliffe v. Davis, Yelv. 179; Bac. Ab., tit. Bailment; Story On Bail ments, sec. 314. (f) Ratcliffe v. Davies, Yelv. 179; (e) Ayliffe's Law of Pawns, 22. Coggs v. Bernard, Ld. Raym., 909, 1 Smith's (g) Isaac v. Clarke, 2 Bulst., 306. by virtue of an express or implied contract to pay it (a). But such an incident of the contract may be implied from the usage of trade, the dealings of the parties, or from other circumstances. And if the money be payable on a day certain, by virtue of an instrument in writing, a Jury may award interest thereon from the due date, or if not so made payable, from the date of a written demand for payment giving notice to the debtor that interest will thenceforward be claimed (b). The "time certain" need not be fixed by the instrument itself. It is enough if an event be mentioned, the date whereof may be afterwards ascertained—as "payment one-third in cash on delivery, and bills at 6 and 12 months for the balance" (c). In practice, however, the contract usually provides for payment of interest at a specified rate, for which, no less than for the principal, the pawn is available as a security, so long as the debt remains unpaid. When the period for redemption has expired, the pawnee may sell the pawn, and the proceeds will then be applied in reduction or extinguishment of the debt. But in the absence of express contract, or requirement by the pawnor, he is not bound to sell, and if he does not, the pawn will be a security for the accruing interest. Pacto placuit, ut, ad diem usuris non solutis, fractus hypothecarum usuris compensarentur fini legitimæ usuræ; quamvis exordio minores in stipulatum venerint, non esse tamen irritam conventionem placuit; cum ad diem minore fœnore non soluto, legitimæ majores usuræ stipulanti recte promitti potuerunt (d). Still, if the contract provides for interest at a certain rate, and down to a fixed day, there is no rule of law that it shall (a) Rhodes v. Rhodes, 29 L.J., 418 Ch.; 8 W.R., 204; Calton v. Bragg, 15 East., 223; Shaw v. Picton, 4 B. & C., 715, 723. (c) Duncombe v. (b) 3 & 4 Wm., cap. 4, c. 42, sec. 28. Brighton Club & Coy., L.R., 10 Q.B., 371; 44 L.J., 216, (d) Dig. Lib. 20, tit. 1, 1. 1, sec. 3. continue at the same rate. A jury may give what they think fit as damages for non-payment at the stipulated time (a), as equitably due ex morá, for qui tardius solvit, minus solvit (b). On a deposit of title-deeds to secure a simple contract debt, without mention of interest, the Court holding that an agreement to pay some interest was to be inferred from the nature of the transaction, allowed the lender 4 per cent. per annum (c). On such deposits, interest is not recoverable for more than 6 years (d), when the mortgagee [or pledgee] seeks to enforce his rights by action. But if a mortgagor seeks to redeem after the lapse of more than 6 years, he must pay all that is due, because redemption is not a legal, but an equitable, right, and he who seeks equity must do equity. A pawnor seeking to redeem under similar circumstances, would probably be treated in the same manner. A contract to pay interest at an increased rate on failure to purchase [or redeem a pledge], is not a penalty, but is a term of the contract, which must be performed (e). The rate of interest chargeable on pledges within the Pawnbrokers' Act, 1872 (ƒ), is limited by that statute. To demand or take more than the specified rate is an offence under the Act (g). Until the repeal of the Acts against Usury (h), all contracts for the payment of interest at more than the then lawful rate of five per cent. per annum (other than contracts made under the Pawnbrokers' Acts), were illegal (a) Cook v. Fowler, L.R., 7 H.L., 27; 43 L.J., 855 Ch. (c) Re Kerr's Policy, L.R., 8 Eq., 331; 38 L.J., 539 Ch.; 17 W.R., 989. (d) Re Stead's Trusts, L.R., 2 C.D., 713; 45 L.J., 634 Ch.; 35 L.T. N.S. 465; 24 W.R. 698; Bowyer v. Woodman, Exp. Clarke, L.R. 3 Eq. 313. (e) Herbert v. Salisbury & Yeovil Railway Coy., L.R., 2 Eq., 221; 14 L.T., N.S., 507; 14 W.R., 706. (f) 35 & 36 Vict., cap. 93, sec. 15, and sched. 4. (g) Ibid, secs. 15 & 45; see post. caps. VIII. & XVIII. and void. Interest at any rate may now be lawfully bargained for (a). But, as already stated (b), pledges to secure high rates of interest, made by expectant heirs, reversioners, or other persons entitled to protection on equitable grounds, will be good only to secure principal and reasonable interest, to which the pawnee's special property will in like manner be limited. As the pledge is only a collateral security for the payment of money borrowed, or the fulfilment of an obligation incurred, the pawnee may proceed against the pawnor personally, at any time after default, without waiting to sell or otherwise realize his security (c). If he does so realise, and the pawn proves insufficient to satisfy the debt, the pawnor remains liable for the deficiency, unless there is a special agreement to stand to the pledge only (d). In illustration of this doctrine, the case of Muncaster and Warre v. Young, tried in the Shoreditch County Court, before Mr. Sergeant Storks, in February, 1850, may be mentioned. The plaintiffs, Pawnbrokers, sued the defendant for £1 11s. 9d., the amount of deficiency on the sale of a brilliant pin pledged with them for £3. In giving judgment for the plaintiffs, his Honour said: "The whole system of Pawnbroking is created in the Act of Parliament. A man having money to lend advances it to another upon the deposit of a pledge or security. That is, the property was a pledge for the security of the money lent; but without the Act referred to, or a special contract for the purpose [or due and reasonable notice], the lender would (a) As in Webster v. Cook, L.R., 2 C.A., 242, where 5 per cent. per month and Three Towns' Loan Society v. Doyle, 13 C.B. N.S. 290; 7 L.T. N.S. 276; 11 W.R. 22, where a stipulation to pay 1s. for default in payment of £1 within a month, were held lawful. (b) Ante, cap. III., ON INVALID AND UNLAWFUL PLEDGES. (c) Anon., 12 Mod., 564. (d) Story On Bailments, sec. 314. Ayliffe On Pawns, 21, 22. South Sea Coy. v. Duncomb, 2 Str., 919. |