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But in all such cases the burthen of proof is cast upon the pawnee, of showing, satisfactorily, not only that he exercised reasonable diligence, but that he was not guilty of negligence.

Pawnee's responsibility where pawn lost.

The pawnee of goods is responsible for any loss or damage with respect to the pawn, while he is warranted in detaining it, if such loss or damage was occasioned by his negligence; otherwise he is not. But he is answerable at all events for any loss or damage which happens after he ought to have returned the pawn (y).

Loss of pawn by theft or robbery.

A pawnee will not be discharged if the pawn be simply stolen from him; but if he be forcibly robbed of it, without his fault, his debt will be extinguished (2). And this is in accordance with reason, and is supported by the old authorities, that "if the pawn be laid up, and yet the pawnee be robbed, he will not be answerable (a)," unless the robbery was occasioned through his negligence.

But if the pawnor tendered the money before the robbery, and the other refused to deliver the pawn, then the pawnee shall be charged; for the special property of the pawnee was thereby determined, and he was a wrong-doer after the tender; and he who keeps the goods of another by wrong, must answer for them

(y) Coggs v. Bernard, 2 Ld. Raym. 917.

(z) Jones, 76.

(a) Vin. Abr. tit. Pawn. G.; Ibid. tit. Bailment, A.

at all events; for his wrongful detainer is the reason of the loss (b).

It was held, in a very early case (c), that if goods be pawned or pledged to another for money, and be afterwards stolen, the pawnee shall not answer for them; because he does not undertake to keep them but as he keeps his own.

A learned writer on the law of bailments (d) endeavours to explain that the word "stolen" in the above report was inaccurately used for "robbed " (e), and that therefore, if the goods be taken clandestinely, the pawnee will be answerable; and that a pawnee is bound to take more care of the goods than of his own, unless he be a prudent manager of his own concerns : the law requiring of him ordinary care (ƒ).

If the pledge be secretly purloined by the pawnee's servant, the pawnee will be responsible for the loss, unless he can show that he could not, by the exercise of ordinary vigilance, have guarded against the theft, or that he took the same care of the pledge as he did of his own goods.

Where A. intrusted B. (a chronometer maker) with a chronometer, to be repaired, and B. suffered his servant to sleep in the shop in which the chronometer was, with other goods, deposited and locked up in a drawer; and B.'s servant broke open the drawer and

(b) Vin. Abr. tit. Pawn. G.; Ibid. tit. Bailment, A.
(c) Southcote's Case, 4 Co. Rep. 83, citing 29 Ass. 28.
(d) Sir William Jones, p. 75 (3rd ed.).

(e) See also Bro. Abr. tit. Bailment, pl. 7.
(f) Jones on Bailments, 82.

stole the chronometer, together with other watches there deposited: it appeared that B., at the time when the theft was committed, had deposited some valuable watches of his own in a strong iron chest in the same room; and it was held, that as he had taken more care of his own goods than of A.'s, he was responsible to A. for the loss of the chronometer (g).

And so in a case where pledges were lost through a burglary having been committed on the pawnbroker's premises: as the pawnbroker had incautiously left his premises, where much valuable property was deposited, without any person residing or being thereon, from Sunday morning until nine o'clock on the following morning, and the safe not being a place of sufficient security for valuable articles, in a house not having persons therein; it was held that the justices were fully justified in finding that the pawnbroker had been guilty of negligence, and was liable to make good the loss (h).

Theft is presumptive evidence of ordinary negligence; and pawnees are liable for losses by theft, unless they can, by positive evidence, repel every presumption of such negligence.

But where a pawnee takes the same care of the pledge as he does of his own goods, and both are lost by theft, that furnishes, prima facie, a presumption of ordinary diligence (i).

The true principle supported by the authorities seems

(g) Gow's Ca. N. P. 30, and see 1 Esp. 315.

(h) Shackell v. West, 2 E. & E. 326, 29 L. J. M. C. 45.
(i) Story on Bailments, 225.

to be, that theft per se establishes neither responsibility nor irresponsibility in the pawnee. If the theft is occasioned by any negligence, the pawnee is responsible; if without any negligence, he is discharged. Ordinary diligence is not disproved, even presumptively, by mere theft; but the proper conclusion must be drawn from weighing all the circumstances of the particular case. This is the just doctrine to which the learned mind of Mr. Chancellor Kent has arrived, after a large survey of the authorities, and it seems at once rational and convenient (k).

Pawnee's right to loan, although pawn lost.

If the pawn be lost without any default in the pawnee, such pawnee may have his remedy over for the loan; for the law requires nothing extraordinary of the pawnee, but only to use an ordinary care for the keeping and restoring of the goods (1).

If a creditor take a pawn he is bound to restore it on payment of the debt: but if he, notwithstanding all his diligence lose it, he shall however recover his debt (m), for the law does not lay upon him an obligation to keep against all accidents (n).

(k) 2 Kent's Com. Lect. 40, pp. 580, 581; Story on Bailments, s. 338 (7th ed.).

() Vin. Abr. tit. Pawn. G.; 2 Salk. 523, Anon.; Coggs v. Bernard, 2 Lord Raym. 917.

(m) 29 Ass. pl. 28. And this is in accordance with the civil law, that the creditor was not prohibited from suing for his debt if he had employed his utmost diligence in taking care of the pledge, and yet it was lost. Inst. lib. 3, tit. 14, lex 4.

(n) Bac. Abr. tit. Bailment, D.

But if a pawn, in pledge with a pawnbroker, be destroyed or damaged by or in consequence of fire, the pawnbroker is now liable (by statute) for the value of the pledge, after deducting the amount of loan and profit due to him upon it (0).

Use of the thing pledged.

When a man hath a special interest in a thing by act in law, he cannot work or otherwise use it; but where he has it by act of the party, he may; as in case. of a pawn (p).

According to the old authorities, if the pawn be of something that will be the worse for wearing, as clothes, &c., the pawnee cannot use it. But if it be something that will not be the worse for wearing, &c., as jewels, &c., the pawnee may use them, but then it must be at his peril; for if the pawnee be robbed in wearing them, he will be answerable for the loss (9); and the reason is, because the pawn is so far in the nature of a depositum that it cannot be used but at the peril of the pawnee; and the using occasioned the loss.

If the pawn be of such a nature that the pawnee is at any charge about the thing pawned to maintain it, as if it be a horse or a cow, then the pawnee may use the horse in a reasonable manner, or milk the cow, and this

(0) 35 & 36 Vict. c. 93, s. 27.

(p) Vin. Abr. tit. Pawn. F., so held per two justices; Owen, 124, Mich. 7 Jac. C. B., Moor v. Canham.

(9) Co. Litt. S. 123, 89, 4 Rep. 83 b. in Southcote's case; Coggs v. Barnard, 2 Lord Raym. 917.

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