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not performed, as that the goods are to be delivered on payment of debts (a), or if bills of lading are retained, though bills drawn against them are not accepted, no property will pass (b). Nor when the consignee fraudulently endorses to a fictitious person, on whose supposed endorsement a bona fide holder advances money (c).

A pledge of a bill of lading, "freight as per Charter Party," extends only to goods mentioned in the bill of lading (d).

(a) Barrow v. Coles, 3 Camp., 92.

(b) Shepherd v. Harrison, L.R., 4 Q.B. (in Ex. Ch.), 493; 6 H.L., 196. Gilbert v. Guignon, L.R. 8 C.A. 16.; Hathering v. Laing, 17 Eq. 72. (c) Gabarrow v. Kreeft, L.R., 10 Ex., 274.

(d) Fry v. Mercantile &c. Bank., L.R., 1 C.P., 689. Tamraco v. Simpson, L.R., 1 C.P. (Ex.), 363.

H

CHAPTER VIII.

THE STATUTORY RIGHTS OF THE PAWNEE.

To the Common Law rights of the Pawnee, certain additions have been made by sundry Acts of Parliament, the most important of which are known as the Factors' Acts (a) and the Pawnbrokers' Acts (b).

As already noted (c), the Factors' Acts make pledges by factors, brokers, and certain classes of agents, vendors and vendees, valid as against their principals, even when such a pledge involves a breach of trust or duty on the part of the agent, provided the agent is a mercantile agent, and the transaction is a mercantile transaction (d). The last of these Acts (e) extends the principle of the Factors' Acts (under particular circumstances) to certain vendors and purchasers.

The Pawnbrokers' Acts confer certain rights and powers upon that particular class of pawnees "who carry on the business of taking goods and chattels in pawn" (ƒ) for sums not exceeding £10 (g). While the Usury laws were in force, these Acts enabled such pawnees to charge interest which would otherwise have been illegal. Since the repeal of those laws (h), the Pawnbrokers' Acts have rather defined and limited the right to interest, than conferred any

(a) 4 Geo. 4, cap. 83. 6 Geo. 4, cap. 91. 5 & 6 Vic., cap. 39. 40 & 41 Vic., cap. 39.

(b) 1 Jac. 1, cap. 21. 25 Geo. 3, cap. 48. 39 & 40 Geo. 3, cap. 99. 9 & 10 Vict.. cap. 98. 19 & 20 Vict., cap. 27. 22 & 23 Vict., cap. 14. 23 & 24 Vict., cap. 21. Repealed by the present Pawnbrokers' Act, 35 & 36 Vict., cap. 93. (c) In cap. V. ante, ON PLEDGES BY FACTORS, BROKERS, AND OTHERS. (d) Hayman v. Flewker, 13 C.B., N.S. 519, 32 L.J. 132 C.P.; Wood v. Rowcliffe, 6 Hare, 183, 191; Higgons v. Burton, 26 L.J. 342 Ex. (ƒ) 35 & 36 Vict., cap. 93, secs. 5 & 6.

(e) 40 & 41 Vict., cap. 39. (g) Ibid, sec. 10.

(h) By 17 & 18 Vict., cap. 90.

exceptional privilege upon tradesmen affected by them. By the Act of 1800 (a) interest was allowed on sums not exceeding 40s. at the rate of one halfpenny per half-crown per month, or 20 per cent. per annum on half-a-crown, or any multiple thereof. But this was held (b) not to entitle the Pawnbroker to take the monthly rate as the unit of calculation when the loan was not a multiple of half-acrown. Therefore, when the loan was 4s., on which the monthly interest was four-fifths of a penny, the lawful interest was not 11 d., or one penny per month for 114 months, but 94d. only. Elaborate sets of interest tables consequently came into use, for which, after considerable discussion by a Parliamentary Committee, simple and uniform rates of profit were substituted by the Act of 1872, by which the Pawnbroker was entitled to charge

For profit on each two shillings or part of two shillings lent on any pledge for not more than one calendar month, .one halfpenny. And so on at the same rate per calendar month. After the first calendar month any time. not exceeding fourteen days will be charged as half a month, and any time exceeding fourteen days and not more than one month will be charged as one month (c).

For loans above 40s. the parties may (d) make a special contract in statutory form, for the payment of any rate of interest agreed on between the parties. These contracts are not subject to stamp duty.

A Pawnbroker is bound (e) to deliver to the pawner a pawn-ticket, when he receives a pledge in pawn. For this ticket he is entitled (f) to charge one halfpenny when

(a) 39 & 40 Geo. 3, cap. 99.

(b) In Reg. v. Goodburn, 8 A. & E. 508; 3 N. & P., 468.

(c) 35 & 36 Vict., cap. 93, sec. 15.

(d) 35 & 36 Vict., cap. 93, sec. 24.

(f) Sec. 15, & sched. IV.

(e) Sec. 14.

the loan does not exceed ten shillings, and one penny when the loan is above that sum. The act does not limit the charge to be made for special contract pawntickets.

If the pawn-ticket be lost or mislaid, the pawner or owner of the pawn may apply to the Pawnbroker for a form of declaration to be made before a magistrate in proof of his ownership, for which, when the loan does not exceed 5s. the Pawnbroker is entitled to charge one halfpenny, and above 5s., one penny per form (a).

The right to sell the pledge, if not redeemed in due time, is an ordinary incident of the contract of pawn. The Pawnbrokers' Act, 1872, fixes the time when this right may be exercised at twelve calendar months and seven days "from the day of pledging, exclusive of that day (b), or, in the words of the Scheduled forms of pawn-ticket, "within twelve calendar months and seven days from the day of pledging," the words "exclusive of that day" being omitted. As the Schedules have effect as part of the Act (c), questions have sometimes arisen as to whether a pledge received, say on January 1st, 1879, might be lawfully treated as unredeemed on January 8th, 1880. On the one side it has been contended that as there cannot be two first days of January in any one year, the twelve months must expire on December 31st, 1879, in which case, January 7th, 1880, will be the last day for redemption. The point has not come before a Superior Court upon a case under the Pawnbrokers' Act, but decisions in similar questions in other cases do not favour so strict a construction. It is true that in a contract to pay demurrage at so much per day, a fraction of a day is

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counted as a whole day (a). But a contract of insurance for six months from February 14th has been held to cover the whole of August 14th (b); an action commenced on December 5th for the price of goods sold on October 5th, to be paid for in two months, was held to have been brought before the credit had expired, because the debtor had the whole of December 5th wherein to pay (c); and in general, when a certain time is given to do any act, that time must be reckoned exclusive of the day on which the time begins, and inclusive of that on which it expires (d). From these authorities it would seem that the day on which the transaction commences, counts when the matter involves the deprivation of liberty or other penal consequences, but not when a similar construction affects the debtor's liability to pay money, or a pawnor's right to redeem the goods he has pledged, so that in the case already put, the pawnor would be in time if he offered to redeem on January 8th, 1880.

At Common Law, every pledge remains redeemable in the hands of the pawnee, even after the period limited for redemption has expired (e). But by the Pawnbrokers' Act, 1872 (ƒ), if a pledge for not more than ten shillings be not redeemed within the statutory period, it becomes the absolute property of the Pawnbroker. The Act of

(a) Commercial Steam Ship Company v. Boulton, L.R. 10 Q.B. 346, 44 L.J. 219 Q.B., 33 L.T. N.S. 707, 23 W.R. 854.

(b) Isaacs v. Royal Insurance Coy., L.R. 5 Ex. 296, 39 L.J. 189 Ex., 22 L.T. N.S. 681, 18 W.R. 982,

(c) Webb v. Fairmaner, 3 M. & W. 473, 6 D.P.C. 493; because if the credit had been for one day, the defendant must have had the whole of the next day for payment, or he might have had no time at all: per Lord Tenterden in Pellew v. Wonford, 9 B. & C., 134.

(d) Per Denman, J. in Migotti v. Colvill, L.R. 4 C.P.D. 233, 48 L.J. 695 C.P.D., 40 L.T. N.S. 747, 27 W.R. 744; where a distinction is drawn between periods of imprisonment and acts to be done inter partes. Lester v. Garland

15 Ves. 254.

(e) Walter v. Smith, 5 B. & Ald., 439.

(ƒ) 35 & 36 Vict., cap. 93, sec. 17, & Sched. III., form A.

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