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· common law, if the pledge was not redeemed by the stipulated time, it did not then become the absolute property of the pawnee, but he was obliged to have recourse to process of law to sell the pledge ; and until that was done, the pawnor was entitled to redeem.a If the pledge was for an indefinite time, the creditor might, at any time, call upon the debtor to redeem by the same process of demand. Where no time was limited for the *redemption, the pawnor had his own lifetime to *582 redeem, unless the creditor, in the mean time, called upon him to redeem; and if he died without such call, the right to redeem descended to his personal representatives. The law now is, that after the debt is due, the pawnee may not only proceed personally against the pawnor for his debt without selling his pawn, for it is only a collateral security, but he has the election of two remedies upon the pledge itself. He may file a bill in chancery, and have a judicial sale under a regular decree of foreclosure; and this has frequently been done in the case of stock, bonds, plate and other chattels, pledged for the payment of the debt.d But the pawnee is not bound
will still be entitled to the pledge, even as against third persons. Macomber v. Parker, 14 Pick. Rep. 497. Story on Bailment, 203, 2d edit. If a thing be not in existence there cannot be a technical pledge, but there may be a hypothetical contract, which will attach as a lien or pledge to them as soon as they come into existence. Macomber v. Parker, 13 Pick. 175. Calkins v. Lockwood, 16 Conn. Rep. 276. Story on Bailment, 290. Vide supra, p. 517. 578.
Glanville, lib. 10. ch. 6. Cortelyou v. Lansing, 2 Caines' Cases in Error, 204, 205.
o Cortelyou v. Lansing, ub. sup. Ratcliffe v. Davis, 1 Bulst. Rep. 29. Yelv. Rep. 178. Cro. J., 244, S. C. Demandray v. Metcalf, Prec. in Ch. 420. Vanderzee v. Willis, 3 Bro. 21. The pledge by the Roman law, might also insist upon a compulsory sale by the creditor. Pothier, Pand. 20. 5. 16. This is also the law in Louisiana, Williams v. Schooner St. Stephens, 14 Martin's Rep. 24.
South Sea Company v. Duncomb, Str. 919. Elder v. Rouse, 15 Wend. 218. Story on Bailment, p. 211, 2d edit.
1 Demandray v. Metcalf, Prec. in Ch. 419. Gilbert's Eq. Rep. 104. Kemp v. Westbrook, 1 Ves. 278. Vanderzee v. Wills, 3 Bro. 21.
to wait for a sale under a decree of foreclosure, as he is in the case of a mortgage of land ; (though Lord Chancellor Harcourt once held otherwise ;) and he may sell without judicial process, upon giving reasonable notice to the debtor to redeem. This was so settled in the cases of Tucker v. Wilsona and of Lockwood v. Ewer. The notice to the party in such cases is, however, indispensable. This was conceded in Tucker v. Wilson, and it has been since so ruled in this country.c The old rule existing in the time of Glanville, and which is now the rule on the continent of Europe and in Scotland, required a judicial sentence to warrant the sale. The Code Napoleone has retained the same check, and requires a ju
dicial order for the sale; and the Code of Louisi*583 anaf has *followed the same regulation. The
civil law allowed the pawnee to sell, in case of default of payment, and after due notice on his own authority ; but if there was no special agreement, it required a two years notice to the debtor, by an order of Justinian.s The English and American law, with the exception of Louisiana, agree in the prompt and easy remedy which they place in the hands of the creditor, when the pawn is not under the control of a special agreement; and there is not any distinction as to the right to sell between the case of a pledge, and of a mortgage of chattels.h But
. 1 P. Wms. Rep. 261. i Bro. P. C. 494. 0 2 Atk. Rep. 303. • De Lisle v. Priestman, 1 Brown's Penn. Rep. 176. Covell v. Gerts, Law Reporter for July, 1846.
Glanville, lib. 10. ch. 6. 8. Huber's Prelec. tom. iii. 1072, sec. 6. Perezius in Cod., tom. ii. p. 63. sec. 8. Domat, vol. ii. p. 362. sec. 9, 10. Ersk. Inst. vol. ii. p. 455. Pothier, Traité du Contrat de Nantissement, No. 24. 2 Bell's Com. 22, 5th edit.
• Art. 2078. f Art. 3132.
& Code, 8. 34. 3. 1. See, also, Dig. 13. 7.4. Pothier, Pand. 20. 4. 11. 18, 19.
• Hart v. Ten Eyck, 2 Johns. Ch. Rep. 62. 100. Patchin v. Pierce, 12 Wendell, 61
the creditor will be held at his peril to deal fairly and justly with the pledge, both as to the time of the notice, and the manner of the sale. The law, especially in the equity courts is vigilant and zealous in its circumspection of the conduct of trustees,&
But the lex commissoria at Rome, the debtor and creditor might agree, that if the debtor did not pay at the day, the pledge should become the absolute property of the creditor. But a law of Constantine abolished this power, as unjust and oppressive, and having a growing asperity in practice.b Every agreement preventing the right of redemption, in mortgages of chattels, as of lands, would, no doubt, be equally condemned in the English law.c
The pledge covers not only the debt, but the interest upon it, and all necessary expenses that may have attended the possession of the pledge; and the lien may by agreement, be created to extend to cover subsequent advances. This has been considered to be the law in respect to mortgages and judgments;d but the power is subject to some qualification, as respects the rights of third persons. Lord Chancellor Cowper gave validity and operation to such a *mortgage, as *584 against a subsequent mortgagee, who had notice of the agreement appearing on the face of the first mortgage ;a and in Connecticut it has been justly held, that the mortgage must contain within itself reasonable notice of the incumbrances, by stating the nature of those thereafter to arise, and the manner in which they were to be created ; so that collusion and fraud may be avoided, and the extent of the incumbrances ascertained, by the exercise of ordinary discretion and diligence. Though there be no express agreement that a pledge for a debt shall be held as security for future loans, yet if circumstances warrant the presumption that a further loan was made upon the credit of the pledge, a court of equity will not suffer the debtor to redeem the pledge without payment of the further loan. If however, there be no reasonable ground for such a presumption, the better opinion is, that the pawnee will not be allowed to retain the pledge for any other debt than that for which it was made.d
Cortelyou v. Lansing, 2 Caines' Cases in Error, 200. Hart v. Ten Eyck, 2 Johns. Ch. Rep. 62. See, also, infra, vol. iv. p. 139, S. P. The holder of hypothecated stock cannot, on defence, without an express stipuJation, have it sold at the board of brokers. It must be sold at public auction on responsible notice. By A. V. Ch. in Castello v. City Bank of A., 1 N. Y. Legal Observer, 25.
5 Code, 8. 35. 9. Hub. tom. iïi. 1038, sec. 16. 1 Domat, 362, sec. 11. Pothier, de Nantissement, n. 18.
o Cortelyou y. Lansing, 2 Caines' Cases in Error, 200. Garlick v. James, 12 Johnson's Rep. 140.
d United States v. Hooe, 3 Cranch's Rep. 73. Shirras v. Craig & Mitchell, 7 Ibid. 34. Hendricks v. Robinson, 2 Johns. Ch. Rep. 309. Livingston v. M'Inlay, 16 Johns. Rep. 165. Lyle v. Ducomb, 5 Binney's Rep. 585. See infra, vol. iv. p. 175.
In Jarvis v. Rogers,e this question was extensively discussed, and the weight of opinion would seem to have been, that the pawnee could not retain the pledge, independent of a special agreement, for any other debt than that for which the chattel was specifically given ; and that good faith would require the restoration of it without deduction on account of any cross demand. This I think to be the better opinion. It was, however, stated, in that case, that by the civil law the pawnee might retain the pledge, not only for the sum for which the pledge
. Gordon v. Graham, 7 Viner's Rep. 52, E. pl. 3.
b Pettibone v. Griswold, 4 Conn. Rep. 158. Stoughton v. Pasco, 5 Ibid. 442. Crane v. Deming, 7 Ibid. 387.
c Demandary v. Metcalf, Prec. in Ch. 419. 2 Vern. Rep. 691. Gilliat v. Lynch, 2 Leigl's Rep. 493.
d Ex parte Ockendeen, 1 Atk. Rep. 236. Jones v. Smith, 2 Vesey, jr. 372. Vanderzee v. Willis, 3 Bro. 21. But see Adams v. Claxton, 6 Ve. sey, 226, where the authority of the two last cases is somewhat disturbed. Jarvis v. Rogers, 15 Mass. Rep. 389. 397. 414. Story on Bailments, 205, 2d edit.
• 15 Mass. Rep. 389.
was taken, but for the general *balance of accounts, unless there were circumstances to show that the parties did not so intend.a If the pawnor has only a limited interest in the articles pawned, the pawnee cannot hold them against the person entitled in remainder, after the particular interest has expired ;b and if a factor pledges the goods of his principal, the pawnee cannot detain them, not even to the extent of the loan. And if there be various claims upon the fund after the pledge has been duly sold, the party who was in possession of the pledge is to be first satisfied his debt.d
As every bailee is in the lawful possession of the subject of the bailment, and may justly be considered, notwithstanding all the nice criticism to the contrary, as having a special or qualified property in it for the protection of that possession; and as he is responsible to the bailor in a greater or less degree for the custody of it; he, as well as the bailor, may have an action against a third person for an injury to the thing; and he that begins the action has the preference; and a judgment obtained by one of them is a good bar to the action of the other.e
· Code, 8. 27. Heinec. Elem. Jur. sec. ord. pand. 4. sec. 46, and Hub. Prelec. lib. 20, tit 6. sec. 1, were referred to in support of the doctrine in the civil law. Pothier, in his Traité du Contrat de Nantissement, No. 47, lays down the same rule, and it also exists in the Scottish law. 2 Bell's Com. 22, 5th edit.
• Hoare v. Parker, 2 Term Rep. 376.
c Patterson v. Tash, 2 Str. Rep. 1178. Daubigny v. Duval, 5 Term Rep. 604. M'Combie v. Davies, 7 East's Rep. 5.
a Marshall v. Bryant, 12 Mass. Rep. 321. This was also the rule in the civil law. Dig. 50. 17. 128. Story on Bailments, 209, 210, 2d edit.
• Flewellin v. Rave, 1 Bulst. Rep. 68. 2 Blacks. Comm. 395. Rooth v. Wilson, 1 Barnw. of Ald. 59. Faulkner v. Brown, 13 Wendell, 63. Thayer v. Hutchinson, 13 Vermont Rep. 504. See supra, p. 568, and see Story on Bailments, p. 74. 191, 192, 205, 2d edit. The pawnee may maintain replevin against the pawnor as well as against a stranger, for a wrongful taking of the goods pledged. Story on Bailment, sec. 303. Gib. son v. Boyd, Kerr's N. B. Rep. 150.