« ForrigeFortsett »
ose principles by a clearness of analysis, and of illustration which is admirable; and to shed light and lustre by means of his chaste style and elegant taste, upon this. branch of the science of jurisprudence.
IV. Of pledging.
This was a bailment or delivery of goods by a debtor to his creditor, to be kept till the debt be discharged; or, to use the more comprehensive definition of Mr. Justice Story,* it is a bailment of personal property, as security for some debt or engagement. All kinds of personal property that are vested and tangible, and also negotiable paper, may be the subject of pledge; and choses in action, resting on written contract, may be assigned in pledge.b A pawn or pledge is the pignori acceptum of the civil law; and, according to that law, the possession of the pledge (pignus) passed to the creditor; but *578 the possession of the thing hypothecated *(kypotket .
Story's Com. 197.
n M'Lean v. Walker, 10 Johns. Rep. 471. Roberta v. Wyatt, 2 Taunt. Rep. 268. Jarvis v. Rogers, 13 Mass. Rep. 105. Story's Com. 198, 199, 2d edition. 2 Bell's Com. 24. The assignment of shares in joint stock companies, such as banks and railroad corporations, by way of pledge or security for monies loaned or advances made, is usually affected by delivery of the certificate of the company for the shares given to the borrower, with a power of attorney to the lender to make the actual transfer on the books of the company. The actual transfer is frequently postponed or omitted, but the transfer, or at least notice to the company of the right, is deemed requisite to the complete efficacy of the security, otherwise a transfer of the shares by the borrower on the books of the company to a bona fide purchaser, &c., if permitted, might embarrass, if it did not destroy the security, inasmuch as the original shareholder would appear on the books to be the reputed and true owner. In England, the actual transfer, or in lien of it, formal notice to the company by the lender, of the assignment of the shares to him in pledge, is deemed requisite under their bankrupt laws, in order to divest the reputed ownership in the debtor, as against his assignees in bankruptcy, in case he should become bankrupt before any actual transfer was made. The point is well considered and discussed in the Law Magazine, London, May, 1838, art. 8, and the numerous recent authorities in support of the notice are there referred to.
ca) did not.' The pawnee is bound to take ordinary care, and is answerable only for ordinary neglect; for the bailment is beneficial to both the debtor and creditor. This is the rule of civil law, and of continental Europe, as well as the rule of the English law.b The pawnee is secured in the payment of his debt; and the pawnor is enabled thereby to procure credit. Lord Holt, in Coggs v. Bernard, gives a clear and excellent summary of the English law on this species of bailment. The pawnee, upon delivery has a special property in the goods pawned; and if they be such as to be injured by use, as clothes or linen, for instance, then the pawnee cannot use them. But if they be such as not to be the worse for use, as jewels, ear-rings or bracelets, pawned to a lady, she to whom they are pawned may use them, though the use is at her peril, because she is at no charge in keeping the pawn.0 She will be responsible in every event for the loss or damage which may happen while she is using the jewels. If the pawn be of such a nature as to be a charge upon the pawnee, as a horse or cow, he may, in that case, use the pawn in a reasonable manner. He may ride the horse moderately, and milk the cow regularly, as if he were the owner; and if he derives any profit from the pledge, he must apply those profits towards his debt.d The common law requires the pawnee, or pledge, to account foT all the income, increase, profits and advantages derived by him from the pledge, in all cases where such
» Dig. 13. 7. 9. 2. Inst. 4. 6. 7. See further, infra, vol. iv. p. 138, on the distinction between a pledge and a mortgage of goods.
* Dig. 13. 6. 5. 2. Ibid. 13. 7. 14. Heinnee. Pond. 13. 6. sec. 117, 1)8, tom. v. 271. Potkier, Traite du Contrat de Nantissement, No. 32, 33, 34. Bracton, 99, b. Lord Holt, in Coggs v. Bernard, 2 Ld. Raym. 916. Story's Com. 223. 1 Bell's Com. 453.
• This is so said by Lord Holt, in Coggs v. Bernard, 2 Lord Raym. 917, and repeated by Sir William Jones; but Mr. Justice Story, in his Commentaries, p. 221, 222, doubts the right of the pawnee to use the jewels
& Mores v. Conham, Owen's Rep. 123. Pothier, Traite du Contrat de Nantissement, No. 23. 35. 36. Cit»7 Code of Louisiana, art. 2919. 3135 Thompson v. Patrick, 4 Watts, 414.
an account is within the scope of the engagernent, *579 after deducting *his necessary charges and expenses.* It is reasonable that these charges and expenses should be deducted from the profits of the pledge; and even extraordinary expenses, necessarily incurred by the pawnee for the preservation of the pledge. and without his default, ought to be borne by the pledger; and Pothierb considers this obligation to be implied in the contract of bailment, and it is the rule in the French and Louisianian codes.0
In general, the law requires nothing extraordinary of the pawnee, but only that he shall take ordinary care of the goods; and if they should then happen to be lost, he may, notwithstanding, resort to the pawnor for his debt. If, however, he refuses to deliver the pawn on tender of the debt, his special property then ceases, and he becomes a wrongdoer, and will be answerable, at all events, for any loss or damage which may afterwards happen to the pawn.d It is likewise admitted that the pawnee may assign over the pawn, and the assignee will take it under all the responsibility of the original pawnee.e So the pawnor may sell or assign his qualified property in the pawn, subject to the rights of the pawnee/
If the pawn be lost by casualty, or unavoidable accident, or by superior force, or perishes from intrinsic defect or infirmity, the pawnee is not answerable, if the loss from such causes be duly made to appear, and no act was done, or omitted to be done, inconsistent with the pawnee's duty; for he was only bound to bestow ordina
• Story's Comm. 232.
• Pothier, Traili du Contra! de fiantissement. No. 61.
• Code Cieil of France, art. 2080. Code of Louisiana, art. 3139. d 2 Lord Raym. 916, 917.
• Mores v. Conham, Owen's Rep. 123. Kemp v. Westhrook, 1 Vesey, 178. Ratcliff v. Vance, 2 Const. Rep. S. C. 239. Whitaker v. Sumner, 30 Pick. Rep. 399. Story on Bailments, sec. 314. 324 322, 2d edit.
r Franklin v. Neate, 13 Meeeon j- W. 481. Story on Bailment, sect. 350, 2d edit.
ry care and diligence.» If the pawn be stolen, it would be presumptive evidence that the pawnee had not used ordinary care, and he ought to show, by the circumstances, that he was in no default. Sir William Jones,1" enters into a critical examination of the cases, to prove that *the pawnee is responsible, if the pawn be *580 stolen or taken from him clandestinely, and not if it be robbed or taken from him by violence. The ground he takes is, that the loss of the pawn by theft is evidence of ordinary neglect; and he vindicates his principle against a contrary doctrine of Lord Coke. with great acuteness and learning. Lord Coke held,0 that if the goods were delivered to one in pledge, and they were stolen, he should not be answerable for them; for he only undertook to keep them as his own. The opinion of Lord Holt would rather seem to agree with that of Coke, as he refers to him on this point without objection; and he says, that if the pawnee uses due diligence, and the pawn be lost, he is not responsible. Bracton uses the same language. If the pawnee bestows an exact diligence, and the pawn be lost by chance, he is not responsible for the loss.d Bracton took all his principles from the Roman law; and Pothier has written a particular treatise upon this identical species of contract.6 He discusses the question, what degree of care a pawnee is bound to bestow upon the pawn; and as it is a contract made for the reciprocal benefit of the contracting parties, the creditor is bound to bestow upon the preservation of the pledge, ordinary care. He is bound, according to the civil law, to bestow that care which a careful man bestows upon his own property. He is not bound to bestow the exactest diligence, as in the case of a loan to
» Code, 4. 24. 5. Pothier, Traitedu Contrat de Nantissement, No. 31. Story's Com. 230.
b Essay on Bailment, 33. 59. 69. 60. 63.
•» Pothier, Traits du Contrat de Nantissement.
use, which is beneficial to the bailee only, nor is he responsible for the smallest neglect. He is responsible for light, but not the lightest neglect, de levi culpa, and not de le»issima culpa.*
The rule would appear to be, that the pawnee was neither absolutely liable, nor absolutely excusable, if the pledge be stolen. It would depend upon circumstances,
whether he was or was not liable. A theft may *581 happen without even *a slight neglect on the part
of the possessor of the chattel; and I think it would be going quite far enough, to hold that such a loss is prima facie evidence of neglect, and that it lays with. the pawnee to destroy the presumption. It is not sufficient, says Pothier, that the pawnee allege that the pledge is lost. He must show how it was lost, and that it was not in his power to prevent it. This was also the decision of the civil law.b
In the case of Cortelyou v. Lansing,0 it was shown, by a careful examination of the old authorities, to have been the ancient and settled English law, that delivery was essential to a pledge, and that the general property did not pass, as in the case of a mortgage, but remained with the pawnor. The pledge of moveables without delivery is void, as against creditors."1 The Roman law allowed the creditor, after delivery of the pledge, to return it to the debtor on the footing of location: but Voet and Bell very properly condemn the Roman rule, as leading to fraud and the insecurity of property.6 At
• Ibid. No. 32. 36.
b Pothier, Traite du Contrat de Nantissement, No. 31. Mr. Justice Story (Com. 224—2290 has very fully and ably vindicated the doctrine of Lord Coke against that of Sir William Jones; and he has satisfactorily proved, that theft per se establishes neither responsibility nor irresponsibility in the bailee.
« 2 Caines' Coses in Error, 200.
• 2 Bell's Com. 25, 5th edit. Story's Com. 201, 202, 2d edit.
• Dig. 20. 1. 37. Voet, Com. ad Pond. 20. 1. IX 2 Bell's Com. 22. The pledge may, however, as it would seem, be delivered back to the owner in a new character, as a special bailee or agent, and the pledgee