and delivery orders (1); but by statute (m), factors and agents intrusted with goods, or the documents of title thereto, may now lawfully pledge the same (n).

The pledging of certificates of registry of ships or vessels is prohibited by statute (o). And there are certain other statutory prohibitions against the pledging and receiving in pledge of goods and materials intrusted to persons for the purpose of manufacture (p); and so also as to the clothes, goods and chattels of Union workhouses (q), Chelsea and Greenwich pensions (?), and some other charitable institutions.

Pledge of perishable goods.

If the pawn be of a perishable nature, as oil, corn, &c., and no time of redemption limited, the loss will fall upon the pawner if the goods perish naturally; and the pawnee may have an action of debt for his loan; but the other will be without remedy for his pawn (s).

But, if a man take perishable goods as a pawn, at his own peril be it, if he cannot re-deliver them on tender or payment of the money borrowed (t).

(1) Paterson v. Tash, 2 Str. 1178; Pickering v. Busk, 15 East, 43. (m) 6 Geo. 4, c. 94; 5 & 6 Vict. c. 39.

(n) See infra, "Pledges by Factors and Agents."

(0) 17 & 18 Vict. c. 104, s. 50; Wiley v. Crawford, 1 B. & S. 253, 265 30 L. J. Q. B. 319.

(p) 6 & 7 Vict. c. 40, s. 2,

(q) 55 Geo. 3, c. 137, s. 2.

(r) 7 Geo. 4, c. 16, s. 34; 10 Geo. 4, c. 25, s. 40.
(8) Vin. Abr. tit. Pawn. G.; Yelv. 179; Co. Litt. 209.
(t) Same, per Fleming, C. J., 1 Buls. 30.

Who may pledge.

To the validity of a pledge it is not indispensable that the pledge should belong to the pledgor; it is sufficient if it be pledged with the consent of the owner; and even without that consent the pledge would be valid as between the parties (u).

As a general rule, one cannot convey to another a right to the possession or custody of property, which he does not himself possess. And if a servant take his master's jewels and pledge them, without his authority, such a pledging cannot alter or affect the ownership of the jewels, or give the pledgee any right to detain them against the owner (x).

But where goods are obtained under colour of a contract, by which it is intended that the property in the goods should be transferred, and the person so obtaining possession pledge the goods, the pledgee will have a valid lien upon them for the amount of his loan. For instance, if a man purchase and obtain possession of a specific chattel, and pay for it with a fictitious bill of exchange, or by a cheque on a bank where he has no funds, and then pledge the chattel for an advance of money; if the pledgee be without notice of the fraud, he will entitled to hold it against the true owner for the amount he advanced upon it (y).

If stolen articles be pawned, or goods that have been obtained by false pretences, the pledgee will have no right to detain them against the true owner.

(u) Jones on Bailments, p. 83, n. 40 (4th ed.).

(x) 34 Hen. 6, fol. 25, pl. 33; 3 Atk. 44; 2 Str. 1187.

(y) Patrick v. Parker, 5 T. R. 175; White v. Garden, 10 C. B. 926.

And if a man find the goods of another and pledge them, the owner may retake them (z).

Pledges by bailees.

Where goods are deposited in the hands of a bailee for safe custody, and the bailee afterwards pawn them, the owner may recover them in an action of trover against the person with whom they have been pawned (a).

Fraudulent pledge by bailee, of negotiable

documents.

But where certain bonds, payable to bearer, and passing by delivery only, were deposited with bankers for safe custody; and the bankers afterwards fraudulently deposited them with their brokers as a security for money advanced, and became bankrupt; it was held, in equity, that the bonds were subject to the general lien of the brokers for all money advanced by them to the bankers; and not merely for the advance made upon the security of those particular bonds (b).

Pledgee may deliver goods to true owner.

But if a person pledge goods to which he has no title, the jus tertii may always be set up by the pledgee in answer to an action against him by the

(z) Vin. Abr. tit. Pawn. E.; Br. Pledges, pl. 28, citing 35 Hen. 6, 25, Simon Eyre's case.

(a) Hartop v. Hoare, 3 Atk. 43. As to the prosecution of a bailee for a fraudulent pawning, see 24 & 25 Vict. c. 96, post, Appendix.

b) Jones v. Peppercorne, 28 L. J. Ch. 158.

pledgor. And so where some plate had been deposited with the defendant, colourably as a security for money lent, but in reality as found by the jury, for the purpose of avoiding execution, it was held in an action of trover by the pledgor, that the defendant was entitled to set up the jus tertii (c). And it appears that where a person pledges property to which he has no title, the pledgee may deliver it to the real owner; there being in the ordinary case of a pledge, an implied undertaking on the part of the pledgor that the property pledged is his own, and on the part of the pledgee that he will return it to the pledgor, provided it be not the property of another (d).

Pledge of goods in which the pledger has only a life interest.

Where goods are pawned by a person who has only a life interest in them, the pawnee has no lien as against the person next entitled at the death of the pawner, although he had no notice of the pawner's limited interest at the time he lent his money. So, where a testator, by his will, left certain plate to trustees for the use of his wife during her widowhood, and she afterwards pawned it, for a valuable consideration, with the defendant, a pawnbroker, who had no notice of her limited interest. At her death the plate was claimed of the defendant by the trustees on behalf of the remainder-man; and on the defendant's refusal

(c) Cheesman v. Exall, 6 Ex. 341, and see Biddle v. Bond, 6 B. & S. 225, 34 L. J. Q. B. 137.

(d) Same.

to deliver it without being paid the money he had advanced upon it, the Court held that the defendant had no valid lien after the death of the tenant for life, and that the plate must be restored to the plaintiffs (e).

Right of property in goods pledged.

The pledging of goods for money lent, does not transfer an absolute property to the pledgee, but merely a special property or right to detain them as a security for the loan. The general property in the goods remains in the pledgor, who, in the absence of any special agreement to the contrary, has a right to demand, at any time, the re-delivery of the goods on payment or tender of the money lent, with interest.

There is a difference in this respect between a mortgage of land and a pledge of goods, for the mortgagee has an absolute interest in the land, whereas a pledgee has but a special property in the goods to detain them for his security. According to the Roman law, mere length of possession by the pawnee will not have the effect of vesting the property of the pledge in the pawnee; but his trustees and executors remain perpetually obliged to restore it, and cannot acquire the right of property therein by prescription (ƒ).

(e) Hoare and another v. Parker, 2 T. R. 376.

(f) Cod. lib. 10 tit. 24, lex. 10. By the early Roman law, the debtor and creditor might agree that if the debtor did not pay the debt within a time specified, the thing pledged should be forfeited, and become the absolute property of the creditor. But a law of Constantine prohibited such contracts, on the ground that they were unjust and oppressive to debtors; and declared that every contract should be null