have no power to sell. The Pawnbrokers' Act was passed to regulate Pawnbroking, which is a business rendered necessary by the peculiar demands of a great commercial country. This Act created a system of trading, and regulated the manner in which pledges were to be received, the manner in which the property was to be secured to the owner, and the mode of forfeiture and final sale. This was a loan of money by the plaintiffs upon security which they were bound to keep and dispose of under certain regulations, but it was a loan; and for his own security the Pawnbroker ought to take sufficient to secure himself; but if he lends 30s. upon that which only fetches 20s., it does not expunge the original debt, nor alter its character. It is possible that an article should be of a perishable character, and that in the course of a year its value might fall 50 per cent., and yet the Pawnbroker cannot sell it until the end of the year. Thus, if he lent £100, is his claim to be satisfied with only £50 where the pledgor is a party who is able to pay the remainder of the debt? I consider the deposit is answerable to the extent of its value. I see no difficulty in this case. I give judgment for the plaintiff." On the same principle, the scheduled forms of pawn-ticket under the Pawnbrokers' Act (a), provide that in certain cases deficit on the sale of one pledge may be set off against surplus on another.

This right to be paid the debt remains, not only when the pawn has perished, or been lost, destroyed, or stolen without the pawnee's default (b), but when there has been negligence in keeping the pawn, or actual wrong-doing

(a) 35 & 36 Vict., cap. 93, sched. 3.

(b) Coggs v. Bernard, 2 Ld. Raym., 909; 1 Smith's L.C., 7th edit., 188. Vere v. Smith, 1 Vent., 121. Finucane v. Small, 1 Esp., 315. Harris v. Packwood, 3 Taunt., 264. Isaack v. Clarke, 2 Bulst., 306. Johnson v. Stear, 15 C.B., N.S. 330. 33 L.J., 130 C.P., 12 W.R., 347. Pigot v. Cubley, 15 C.B., N.S. 701, 33 L.J., 134 C.P., 12 W.R., 467.

with respect to it, amounting to a wrongful conversion or detention, for which the pawnor has recovered the pawn or its value (a). Before the Judicature Acts (b), the pawnee in such a case might either sue for his debt, or use it in reduction of damages for the wrongful act in respect of which the pawnor had proceeded against him. Since the Judicature Acts, he may obtain the same relief by counter claim (c).

Though the pawnee is entitled to retain the pawn in his possession until payment of his debt, he has no right to use or otherwise deal with it to the prejudice of the pawnor. As a bailee, his first duty is so to preserve the subject of the bailment as to give his bailor no just cause of complaint, and his use of the pawn may be lawful, unlawful, or indifferent, according to the nature of the thing pawned, and the contract expressly or tacitly made by the pawnor with reference thereto. Story thus (d) sums up the rules deducible from the authorities on this subject:

(1) If the pawn is of such a nature that the due preservation of it requires some use, there such use is not only justifiable, but is indispensable to the faithful discharge of the duty of the pawnee (e). (2) If the pawn is of such a nature that it will be worse for the use, such, for instance, as the wearing of clothes that are deposited, there the use is prohibited to the pawnee (ƒ). (3) If the pawn is of such a nature that the keeping is a charge to the pawnee, as if it is a cow or a horse, there the pawnee may milk

(a) Ratcliffe v. Daris, Cro. Jac., 215. Yelv., 178. (b) 36 & 37 Vict., cap. 66. 38 & 39 Vict., cap. 77. (e) 36 & 37 Vict., cap. 66, sec. 24, sub-sec. 3. Order 19, rules 8, 9. Order 22, rule 8.

(d) On Bailments, sec. 329. (e) Jones On Bailments, 81.

(f) Jones On Bailments, 81. Coggs v. Bernard, 2 Ld. Raym., 909, 917; 1 Smith's L.C., 7th edit., 188.

the cow and use the milk, and ride the horse by way of recompense (as it is said) for the keeping. (4) If the use will be beneficial to the pawn, or it is indifferent, there it seems the pawnee may use it; as if the pawn is of a setting-dog, or of books, which will not be injured by a moderate use. (5) If the pawn be of such a nature that, though not injured by use, it will thereby be exposed to extraordinary perils, such use is forbidden to the pawnee.

Sir Wm. Jones (a), in terms rather more favourable to the pawnee than those of the great American jurist, says, "If pawns cannot be hurt by being worn, they may be used, but at the peril of the pledgee, as if chains of gold, earrings, or bracelets, be left in pawn with a lady, and she wears them at a public place, and be robbed of them on her return, she must make them good." This rule is open to objection, as it makes the use of the pawn depend, not upon the act of user, but upon its consequences; a test which is scarcely. satisfactory, and is contrary to Lord Holt's judgment (b), in which he says, "the pawn is in the nature of a deposit, and as such is not liable to be used," for, "unless the contrary is expressly agreed, it may fairly be presumed that the owner of such a pawn would not assent to the jewels being used as personal ornaments, and thereby becoming exposed to unnecessary and extraordinary perils" (c).

If the pawn be so used as to produce a profit, such profit would seem to belong to the pawnor, and to be available in reduction of his debt, just as rents and profits received by a mortgagee in possession are applied, first in keeping down interest, and then in reducing the principal (d). The

(a) Treatise On Bailments, 81.

(b) Coggs v. Bernard, 2 Ld. Raym., 909, 917; 1 Smith's L.C., 7th edit., 188. (c) Story On Bailments, sec. 330.

(d) Gould v. Tancred, 2 Atk., 533. Shepherd v. Elliott, 4 Madd. 254.

pawnee, like the mortgagee, is only entitled to be paid his debt, with interest and expenses, and there is "a most persuasive equity" in requiring him to account to his debtor for any profit he may have made by using that debtor's goods (a). Quidquid pignori commodi, sic incommodi fortuito accessit, id ad debitorem pertinet (b).

The pawnee may release one of the things pawned without thereby releasing his rights over the others. And when several things are included in one pledge, he is not bound to permit the pawnor to redeem them separately on payment of a proportionate part of the money advanced. Qui pignori plures res accepit, non cogitur unam liberare, nisi accepto universo, quantum debetur (c). Si debitor res suas duobus simul pignori obligaverit, ita ut utrique in solidum obligatæ essent, singuli in solidum adversus extraneos Serviana utentur (d).

Possession of goods may be evidence of authority to pledge them. Therefore, if a servant usually employed to borrow money for his master, has goods in his hands of a nature not usually left in a servant's custody, there will be prima facie proof of authority to pledge on the master's behalf, and thereby confer a good title on the pawnee, though the presumption thus raised may be rebutted by parol evidence (e).

Even if the pawnor be not the owner of the thing pledged, a bona fide pawnee from him will nevertheless acquire a special property in the pawn, good against all but the true owner. So also, if a pawnor, having only a special or qualified property in the pawn, professes to pledge the entire property therein, the pledge will be good against the true owner for the special property only (f), and the

(b) Dig. lib. 20, tit. 1, 1. 21, sec. 2. (d) Ibid., sec. 10.

(a) Story On Bailments, sec. 331.
(c) Dig. lib., 20, tit. 1, sec. 19.
(e) Anon., 12 Mod., 564.

(f) Ibid.

pawnee may defend himself against action by his pawnor, in the first case by delivering the pawn on demand to him, and in the second upon tender or payment of the sum due to the pawnor by the owner (a), though in the latter case the second pledgee may discharge himself by delivering the goods to his pawnor, at any time before the real owner demands and offers to redeem them (b).

If a factor or other person to whom goods are consigned on trust for sale, pledge bills of lading, the bona fide pledgee will acquire a good title to the goods. But the consignor or other owner is entitled to redeem on the same terms as the pledgor, and if the latter has also pledged property of his own, the owner may claim to have them marshalled, so as to cast the burden of the pledge upon them, and exhaust their value, before resorting to things which the manager had only an ostensible right to deal with (c). Such a pledge cannot be retained as security for a general balance of account, but only for the specific advance made upon it (d).

The title of a bona fide pledgee by endorsement and transfer of bills of lading will prevail to the extent of the pledgee's interest, against the right of the consignor to stop in transitu, for the consignee has sufficient property in the Bill of Lading to make a valid transfer thereof (e). But the [pledgee or other] assignee of a Bill of Lading takes it subject to the conditions which bound the pledgor or assignor, and will acquire no title if the condition be

(a) Story On Bailments, sec. 340. Jarvis v. Rogers, 15 Mass. (U.S.) Reports, 389. (b) Story On Bailments, sec. 340.

(c) Re Westzinthus, 5 B. & Ad., 817. See also, cap. V., ON PLEDGES BY FACTORS. For analogous marshalling in favour of a mortgagee, see Re Mower's Trusts, L.R., 8 Eq., 10; in favour of surety, Heyman v. Dubois, L.R., 13 Eq. 158; 41 L.J. 224 Ch. ; in favour of a defaulting factor's principal, exp. Alston. re Holland, L.R. 4 C.A. 168; 19 L.T. N.S. 542; 17 W.R. 266. (d) Spalding v. Ruding, 6 Beav., 376.

(e) Lickbarrow v. Mason, 2 T.R., 63; 1 H. Bl., 357; 6 East, 131; 1 Smith's L.C., 7th edit. 756.