Page images
PDF
EPUB

Upon tender by the pawnor or his executor, of the money secured by the pawn, the property, notwithstanding the refusal of the tender, is reduced, instantly, to the pawnor (d).

If a time has been set for the redemption of a pledge, and before that time the pledger dies, his executors may redeem it, and it will be assets in their hands; for where there is a time limited, there, by the express words, the party hath till the time appointed; and if he dies meanwhile, his executors may redeem; and therefore the death of either party cannot prejudice (e).

The pledge cannot be redeemed by payment of part only of the loan.

A pawn or pledge is a security for the whole of the loan. If a portion only be paid, the pledgee has a right to retain the pledge as a security for the remainder; and the pledgor cannot recover back the pledge until the whole amount of the loan has been paid or tendered (ƒ).

(d) Vin. Abr., tit. Pawn A.

(e) Bac. Abr., tit. Bailment B.; Bulst. 29, 30.

(ƒ) By the Roman law the pawnee was entitled to retain the thing given to him as a pledge until the debt was entirely discharged. And this right of retention belonged to the creditor, not only on account of the principal debt for which the pawn was given, but also on account of the interest on it and the expenses employed upon the thing while in his possession. Dig. lib. 13, tit. 7. And where the pledge was given in general terms, it secured not only the principal debt, but also the interest agreed upon, the usura morce and the costs of suit incurred by the creditor, and likewise the impensæ necessarariæ and utiles; still, as regarded the interest and conventional penalties, they were covered by the pledge only so far as they had been agreed upon at the time of pledging.

Detention of pledge for other debts.

The pledge cannot be detained for any further or other debt, beyond that for which it was deposited. It appears, however, that in equity, a pledge of negotiable securities payable to bearer may be made available for the general lien of the pawnee (g).

Where several things pledged for one loan.

If several things be pledged, each is deemed liable for the whole debt. If one of them perish, or be lost without default of the pawnee, he has a right over all the residue for the whole debt (h).

Payment or tender of the loan must be made.

A pawnor cannot compel the pawnee to deliver up the pledge, whether it be goods or the symbols of goods, which have been deposited as a security for the payment of a debt or bill of exchange, until he has paid or tendered the amount of the debt: and this, too, although the pledge be in the hands of a subpawnee (i).

But if the pledge was expressly given for securing the principal sum, or the interest, or a part of the debt, it was liable for that only for which it was given. 1 Mackeldey's Civil Law by Kaufmann, ss. 343, 349, Edition 1845.

(g) Jones v. Peppercorn, 28 L. J. Ch. 158. By the French Code, the holder of a pledge has a right of retention for other debts due to him from the pledgor, though not specifically charged on the thing pledged. Cod. Civ., art. 2082.

(h) Bac. Abr., tit. Bailment.

(i) Donald v. Suckling, 7 B. & S. 783, 35 L. J. Q. B. 232; Halliday v. Holgate, L. R. 3 Ex. 299, 37 L. J. Ex. 175.

Effect of tender of the loan.

On tender and refusal of the money, (which are equivalent to actual payment,) the whole property is instantly vested in the pledgor; who may then maintain an action of trover to recover the pledge (k).

After tender, the pledgee is a wrong-doer, and becomes liable in all possible events to make good the pledge if it be lost, or to relinquish his debt (1).

If the pledgor, after tender and refusal of the money, recover the goods in an action of trover, yet the pledgee may have an action of debt for his money; for although the security ceases, the duty remains, inasmuch as the money borrowed is not repaid to the party who lent it (m). But where a tender has been made, the pledgee should demand the money before bringing the action.

Power of sale of pledges at common law.

As to the power of the pledgee to sell the pledge in default of redemption: if a day certain be agreed on for redeeming the pledge, the pledgee may sell, although no such stipulation was made at the time of pledging; for in such a case a power of sale is implied from the nature of the contract (n). And if no day be named for redemption, it has been said, that it is to be inferred that the contract between the parties is, that if the borrower do not repay the loan, the lender shall be at

(k) 29 Ass. 28.

(m) Bac. Abr., tit. Bailment.

(7) 2 Lord Raym. 917, Jones, 80.

(n) 3 Salk. 267, pl. 2, Lockwood and others v. Ewer, 9 Mod. 278.

liberty to reimburse himself by sale of the deposit (0). But the point was not actually decided by the court in either case; and it has never been expressly held that the pledgee may sell the pledge, without notice to the pledgor, when no time has been stipulated for redemption (p). It appears, however, that if notice be given to the pledgor that, unless the pledge be redeemed by a day stated in such notice, the pledgee will sell;

(o) Pothonier v. Dawson, Holt, N. P. 383, per Gibbs, C. J. ; Martin v. Reid, 31 L. J. C. P. 216, per Willes, J.

and

(p) By the Roman law, in case the debtor did not pay at the proper time, the pledgee had a right to sell the thing and pay himself out of the proceeds (jus distrahendi pignus); but this right was required to be exercised pursuant to the terms of the contract. If by such contract no stipulation was made as to how the pledge should be sold, the creditor, as soon as the debt became due, might either request the debtor to pay the debt or he might obtain a judicial decree to authorise the sale; but it was declared by a Constitution of Justinian, that the sale should not take place until two years had elapsed from the date of the notice given to the debtor, or of a judicial decree pronounced against him. Dig. lib. 13, tit. 7, lex 4; Cod. lib. 8, tit. 33, 34, const. 3; Poth. Pand. 20, 4, n. 18, 19. The debtor could not prevent the creditor from exercising the power of sale, nor could he compel him to exercise it. But the thing pledged might be sold as soon as the day of payment had arrived, if the debtor made default, and the requisite notice had been given. The parties might stipulate, by the instrument creating the pledge, upon what terms and conditions the thing pledged might be sold. A simple stipulation that the creditor might sell had the effect, merely of absolving him from the necessity of giving notice to the debtor. A stipulation that the creditor should not sell had the effect merely of compelling him to give a longer notice. Muhlenbruch, Doct. Pand. ss. 314, 315, 318; and see Mackeldey, Systema Juris Romani hodie usitati, s. 316, ed. 1848. By the law of France, if a power of sale has been reserved by the contract, the creditor may summon the debtor to pay, and, in default of payment, obtain a judge's order for sale of the pledge, after a certain time allowed for redemption, at the discretion of the judge. Domat. liv. 3, tit. 1, s. 3, 10. And in Scotland, a judicial sentence is required to warrant the sale of a pledge. 2 Bell's Com. 22.

the sale would be lawful, without a suit for foreclosure (q). The pledgee, in the absence of any such notice, must bar the pledgor's right of redemption by a decree of foreclosure (r).

And where the stipulated time for redemption has been rendered indefinite by a subsequent agreement between the parties, it is not competent to the pledgee to sell without a proper demand and notice. A notice that he will sell unless an excessive sum be paid immediately, is not such a notice as will justify the sale (s).

And so where A. deposited goods with B., as security for a loan, payable upon a day certain. After the day of payment had arrived and default made by A., it was agreed between A. and B. that the time for payment should be extended indefinitely, A. paying interest for the loan at the rate of 10s. a month. In the middle of the second month B. gave notice to A. to pay a certain amount, and in default that he should sell the goods deposited. The amount specified was more than that to which B. was entitled for principal and interest at the time the notice was given; and it was held, that under the agreement for an indefinite extension of time, B. had no right to sell the goods pledged until, by taking the proper steps, the new arrangement was terminated, and that sending the above notice had not that effect (t).

(q) Tucker v. Wilson, 1 P. Wms. 260.

(r) Wayne v. Hanham, 9 Hare, 62, 20 L. J. Ch. 530.

(s) Pigot v. Cubley, 15 C. B. N. S. 701.

(t) lbid. 33 L. J. C. P. 134; and see Martin v. Reid, 31 L. J. C. P. 126, 11 C. B. N. S. 730.

« EelmineJätka »