No. 1043.

Book 2, part 2, tit. 5, chap. 2, sec. 2, § 2, 3, 4.

§ 2. What claim may be secured by a pledge.

No. 1045.

1043. The pawn must be given for a claim, whether it be a debt for money or for the fulfilment of any other engagement. It may be for that of the pawnor or any one else; the claim or engagement may be due, or the pawn may be as a security for a future debt or lawful engagement.

When the pledge is given to secure a particular debt or contract, it will not authorize the pawnee to retain it for another, unless, from the circumstances, such seems to have been the intention of the parties. (a) But the pawn is liable for all incidental charges and expenses, as, for example, interest on a debt, or any expenses about the pledge.(b)

§ 3. Of the delivery of the thing pledged.

1044. One of the essential requisites of this contract is, that the thing pledged shall be delivered to the pawnee, for, till then, he acquires no right or property in it. The delivery may be actual or constructive.(c)

§ 4. Of the obligations and rights of the pawnor.

1045. By the act of pawning, the pawnor enters into an implied agreement or warranty that he is the owner of the property pawned, and that he has a right to pass the title.(d)

The pawnor has the right to redeem the pledge, notwithstanding he has not strictly complied with the contract, until the pawnee has taken such steps as to divest him of that right.(e) But the pawnee may deprive him of this right by selling the pawn ;(f) and

(a) Jarvis v. Rogers, 15 Mass. 389, 397; Gallist v. Lynch, 2 Leigh, 493. (6) Ayl. Pand. B. 4, t. 18; Domat, partie 1, liv. 3, t. 1, § 3, n. 4, 19, 20.

(c) Jewett v. Warren, 12 Mass. 300; Poth. du Contrat de Nantissement,

n. 8.

(d) Story, Bailm. § 354.

(e) Cortelyou v. Lansing, 2 Caines' Cas. Err. 200.

(f) 1 Reeves' Hist. 161; 2 Caines' Cas. Err. 200; Yelv. 178.

No. 1046.

Book 2, part 2, tit. 5, chap. 2, sec. 2, ◊ 5, art. 1.

No. 1046.

the pawnor will be presumed to have abandoned it, after a great length of time. (a)

The pawnor has no right to redeem the pledge partially, by paying a part of the debt, and, if several things be pledged for the same engagement, the debtor is not entitled to either until he has entirely fulfilled it.(b)

§ 5. Of the obligations and rights of the pawnee.

Art. 1.-Of the pawnee's right to use the pledge.

1046. In virtue of the pawn, the pawnee acquires a qualified property in the thing, and is entitled to the exclusive possession, during the time and for the object during which it is pledged.(c)

While the pawn is in his possession, the pawnee may use it, when such use is for the benefit of the pawnor, and, if its preservation depends upon its use, it is the duty of the pawnee to use it.(d) If it may be used without injury, and it is used by the pawnee, he does so at his peril. If its use will be injurious to the pawnor, the pawnee is not allowed to use it, (e) in

the absence of any contract.

The rule of the civil law is, that where the pawnee uses the pledge, and it produces a profit, he shall account for it to the pawnor, he being allowed his expenses. This is but equity, and, accordingly, it has been holden that where a slave was pledged to secure the payment of a sum of money, which had been borrowed, the pawnee was liable in assumpsit for the clear profits of the slave beyond the interest of the debt, the principal having been paid.(ƒ)

(a) Matth. Pre. Ev. 20, 331.

(6) Union Bank v. Laird, 2 Wheat. 390; Elder v. Rouse, 15 Wend, 218. (c) 2 Bl. Com. 396; Bac. Ab. Bailment, (B).

(d) Jones' Bailm. 81; Story, Bailm. § 329; Thompson v. Patrick, 4 Watts, 414.

(e) Story, Bailm. § 330. See Thompson v. Patrick, 4 Watts, 414. (ƒ) Houton v. Holliday, 1 Car. Law Rep. 87; S. C. 2 Murph. 111. See Ross v. Newell, 1 Wash. 14; Davenport v. Tarlton, 1 Marsh. 244.

No. 1047.

Book 2, part 2, tit. 5, chap. 2, sec. 2, § 5, art. 2, 3.

No. 1049.

Art. 2.What care the pawnee shall take of the pledge.

1047. The principal obligation which arises from the contract of pawn on the part of the pawnee is to return the thing pledged to the pawnor, when the obligation of the latter shall have been acquitted. This obligation, like all those made to deliver a certain thing, is extinguished, when the thing is lost without the fault of the pawnee; or if it be lost by the fault of the pawnor.

From this principal obligation of returning the pledge, another is a necessary consequence, which is that of taking care of it, during the time it has been pawned, in order to return it afterward. The pawnee is bound to take ordinary care of the pledge by using ordinary diligence. If he does this he will not be responsible for the loss. (a)

Art. 3. Of the remedy of the pawnee.

1048. The pawnee has a double remedy. The pledge has been given to him as a security for his claim, upon the express or implied condition that if such claim be not satisfied within the time agreed upon, he shall have the right to apply the thing pledged, or its proceeds, to the satisfaction of his claim; this is one of his remedies. As the debt is due, and it is a personal obligation of the debtor, independent of the pledge, it is evident he may bring an action for its recovery, just as if he had no such security; this is his other remedy.

1. Of the pawnee's right to sell the pledge.

1049. When the pawnor becomes in default by not paying the debt he owes, or fulfilling his engagement, the pawnee acquires a right to sell the pledge and pay himself out of the proceeds; but, until the sale, the pawnor may redeem it, by paying what he owes. In

(a) Jones, Bailm. 75; 1 Dane's Ab. c. 17, art. 12; Domat, liv. 1, t. 1, § 4, n. 1; Poth. du Contrat de Nantissement, n. 34.

No. 1050.

Book 2, part 2, tit. 5, chap. 2, sec. 2, § 5, art. 3.

No. 1050.

some cases notice of the intended sale is required, and in all cases it is prudent to give it. Care must be taken not to sell the pledge before the pawnee has acquired the right to do so; when there has been an agreement as to time when the pledge might be sold, that time must have expired, and then the goods pledged may be sold without further notice, but still a notice is advisable when it can be given. On the contrary, when the goods are pledged for an indefinite period of time, the pawnee cannot sell them without notice to the person by whom they were pledged ; (a) and if the latter be absent, or cannot be found, judicial proceedings should be had to bar his right to redeem.(b) When several things have been pawned for the same claim, they may be sold seriatim until the whole debt shall be discharged. The moment the pawnee has made a sufficient sum to pay himself, his right to sell the remainder is at an end. He is bound to return the surplus, if any, and if the proceeds of the sale should not be sufficient to pay the debt, the pawnor will still be liable for the difference.(c)

2. Of the pawnee's right of action.

1050. The debt or engagement for which a pawn is given is the principal obligation, and the obligor is personally bound to fulfil it, as if no pledge had been given. The creditor may, therefore, bring an action for the recovery of the debt at any time after it becomes due, without any surrender of the pledge. And if the pawn be lost, or surrendered to the pawnor, or surreptitiously obtained by the latter, or if the pawnee convert it to his own use, and the pawnor recover damages from him, on that account, for its value, the original obligation survives. (d)

(a) De Lisle v. Priestman, 1 P. A. Browne, 176.

(b) Garlick v. James, 12 John. 146; Hart v. Ten Eyck, 2 John. Ch. 62. (c) Bac. Ab. Bailment, B.

(d) Landon v. Buel, 9 Wend. 80; Elder v. Rouse, 15 Wend. 218; Case v. Boughton, 11 Wend. 106.

No. 1051.

Book 2, part 2, tit. 5, chap. 2, sec. 1.

§ 6. Of the extinction of the contract of pawn.

No. 1053.

1051. Whatever extinguishes the claim which the pawn was given to secure, discharges the pawn, and entitles the pawnor to regain the possession. This may be done in several ways.

1. By payment of the debt, or the discharge of the engagement for which the pawn was given. 2. By accord and satisfaction.

3. By taking a new security instead of the old one, with an intention of liquidating the one which was first given, and relying upon the latter, without making any new provision as to the pledge. The effect of this, which the civilians call a novation, has been already explained. But unless there be a clear intention to extinguish the original security, a mere renewal of a claim will not have that effect.

4. When on a trial between the pawnee and the pawnor on the original claim, a final judgment is rendered in favor of the pawnor, the pledge is discharged. 5. The destruction of the pledge destroys all right

to it.

6. The release of the thing pledged or a waiver of it, destroys the right which the pawnee had.

Second Class.-Of bailments for the benefit of the bailor.

1052. Having disposed of the first class of bailments where the contract is beneficial to both parties, let us next consider the second class, or those in which the trust is for the benefit of the bailor; these are, 1, deposits; and 2, mandates.

SECTION 1.—OF DEPOSITS.(a)

1053. Deposit is usually defined to be a naked bailment of goods by one of the contracting parties to another, to be kept by the latter for the former, without reward, and to be returned when the depositor

(a) See Bac. Ab. Bailment; Inst. 3, 15, 3; Nov. 73 and 78; Poth. Du Dépôt; Domat, partie 1, liv. 3, t. 1, s. 5, n. 26; Code 4, 34.