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ments of husbandry, and a widow's raiment, to be given in pawn, deserve to be imitated as well as admired (b).

With a few exceptions, there seems to have been a remarkable harmony with the civil law in the decisions of the English and American courts on this branch of jurisprudence. Bracton, and some other early text writers, seem to have adopted it freely; and the judgment of Holt, C. J., in the case of Coggs v. Bernard (c) bears distinct traces of his reading of the civil law on the subject. Chancellor Kent observes: "The law of pledges shows an accurate and refined sense of justice; and the wisdom of the provisions by which the interests of the debtor and creditor are equally guarded, is to be traced to the Roman law; and shines with almost equal advantage, and with the most attractive simplicity, in the pages of Glanville" (d).

A very important feature in this branch of the law, particularly from a mercantile point of view, is that of pledges by Factors, and Agents intrusted with the possession of the goods of their principals, for sale. By the common law, persons so intrusted had no power to pledge the goods, notwithstanding they had a lien upon them for debts due from their principals; an inconvenience to the mercantile community which produced frequent litigation, and proved highly injurious to commercial interests, and led to the passing of the first of the Factors' Acts (e), which was shortly afterwards

(b) Sir William Jones on Bailments, 84.
(d) 4 Kent's Com. 140 (152, 11th ed.).
(e) 4 Geo. 4, c. 83.

(c) Supra, p. 1.

amended by a subsequent statute (f), and finally by an Act of the present Sovereign (g). These statutes, respectively, form the basis of the present law upon that branch of the subject; and have given rise to several judgments which have a very important bearing upon mercantile transactions within the spirit and meaning of those statutes.

The earliest trace in the Statute Book, of any legislative measure touching the trade or business of pawnbroking, is in the year 1604, when a statute was passed (1 & 2 Jac. 1, cap. 21 (k)) entitled, "An Act against Brokers ()." The necessity for legislative interference in the business of pawn-taking may be gathered from a perusal of the preamble to that statute, which enacted that the sale, exchange, pawn, or mortgage of any jewel, plate, apparel, household stuff, &c., wrongfully obtained, and sold, uttered, pawned, exchanged, or otherwise disposed of, should not alter the property therein and that any "broker or pawntaker" should, upon request, declare how and by what means he became possessed thereof, and to whom he had disposed of the same, and upon refusal was required to forfeit to the true owner double the value. Several subsequent statutes for re

46

(f) 6 Geo. 4, c. 94.

(h) Repealed by 35 & 36 Vict. c. 93.

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(g) 5 & 6 Vict. c. 39.

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(i) A previous Statute was passed in the year 1541 (33 Hen. 8, cap. 1) 'Against them that counterfeit letters or privy tokens to receive money or goods in other men's names. But it is not quite clear whether this statute was directed against the lending of money on deposit of goods, or whether it was not more particularly against a means used by "certain evil-disposed persons for unlawfully obtaining the goods of other

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gulating the business of pawn-taking, and otherwise directly affecting that trade, were from time to time passed; by one of which, in 1785 (k) all pawnbrokers were required to take out a licence to carry on their business. And in the year 1800 a general statute (7) was passed, by which the rates of interest to be charged by pawnbrokers were more precisely defined, and numerous provisions made for regulating the trade. This statute continued in force, subject to others for amending it in some particulars, down to the present time, when it was repealed by the Pawnbrokers' Consolidated Statute of 1872 (m).

Greater facilities are now afforded to money-lenders than have existed for upwards of four centuries, by the repeal of all the laws against usury (n); and now by the Pawnbrokers' Consolidated Act, 1872, which enables pawnbrokers to make their own terms as to the loan of sums above 21., so long as the same are embodied in a Special Contract, in the form stated by the statute. But as to the loan of sums above 10l., pawnbrokers are placed upon the same footing as other persons, and may make such advances upon any terms that may be agreed on. All such transactions must, therefore, be considered apart from the statute, as they are governed entirely by the common law.

(k) 25 Geo. 3, c. 48.
(m) 35 & 36 Vict. c. 93.

(7) 39 & 40 Geo. 3, c. 99.
(n) 17 & 18 Vict. c. 90.

PART I.

PLEDGES AT COMMON LAW.

Definition of a pawn or pledge.

IN the Roman law, a pawn (Pignus) was distinguished from an hypothecation (Hypotheca) in this, that in the former the possession was delivered to the pawnee; in the latter it was retained by the pawner (a) The definition of a pledge or pawn is thus stated by Lord Holt, C. J., in the famous case of Coggs v. Bernard (b): "When goods or chattels are delivered to another as a pawn, to be security for money borrowed of him by the bailor; and this is called in Latin vadium, and in English a pawn or pledge." And by Sir William Jones (c): "Pignori acceptum, when a thing is bailed by a debtor to his creditor in pledge, or as a security for the debt."

A pledge is, therefore, a bailment of any kind of goods or chattels, or the documents of title thereto, or of scrip, debentures, or other instruments; to be held as a security for money lent, a debt due, or to accrue due, or the performance of some contract or engagement and upon the understanding, express or implied,

(a) Dig. lib. 13 tit. 7, lex 9, s. 2; Inst. lib. 4, tit. 6, s. 7. (b) 2 Lord Raym. 913.

(c) Jones on Bailments.

that the goods or other thing deposited is to be restored to the owner on payment of the loan or debt, or the fulfilment of the contract or engagement.

The thing so deposited is termed a pledge or pawn ; the person depositing, the pledger or pawner; and the person taking or receiving it, the pledgee or pawnee.

What may, and what may not be pledged.

At common law, goods and chattels of all kinds may be pledged, and even live animals (d), and perishable goods (e), title-deeds (ƒ), leases for years (g), bonds and securities for money (h), promissory notes and bills of exchange, letters of allotment and scrip, certificates of shares, debentures (i); and even money itself if marked, or enclosed in a bag or box, so as to be capable of identification (k). But a factor had no right at common law to pledge the goods of his principal, nor the symbols of property therein; as bills of lading, dock warrants,

(d) Coggs v. Bernard, 2 Lord Raym. 913; Martin v. Reid, 31 L. J. C. P. 126.

(e) Co. Litt. 209, Yelv. 179. By the Roman law, every species of property which could be mancipated or ceded in jure, not merely things, but even children, if their father had them under his potestas, might be he object of a pignus. Liv. 2, 24; Puchta's Inst. 2, 731, 732; Gaius Com., trans. by Tomkins & Lemon, p. 267.

(f) Fitzjames v. Fitzjames, Finch R. 10, Mich. 25, Car. 2.

of title-deeds creates an equitable mortgage. (g) Clark v. Gilbert, 2 Bing. N. C. 357.

(h) Vanderzee v. Willis, 3 Br. C. C. 21.

A pledge

(i) Tucker v. Wilson, Wms. Rep. 261, Trin. 1714; Scott v. Parker, 1 Q. B. 809; Jones v. Peppercorn, 28 L. J. Ch. 158; Donald v Suckling, 7 B. & S. 783; Halliday v. Holgate, L. R. 3 Ex. 299.

(k) Isaac v. Clark, 2 Bulstr. 306; Ross v. Moses, 1 C. B. 232.

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