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other chattels, pledged for the payment of the debt." But the pawnee is not now bound 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. Wilson,b and of Lockwood v. Ewer. The notice to the party in such cases is, party i however, indispensable. This was conceded in Tucker v. Wilson, and it has been since so ruled in this country. 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 Napoleon has retained the same check, and requires a judicial order for the sale; and the code of Louisianas has followed the same regulation. The civil law allowed the pawnee to sell in case of default of payment on his own authority, but it required a two years notice to the debtor, by an ordinance of Justinian. The English and American law, with the exception of Louisiana, is peculiar in the prompt and easy remedy which it places in the hands of the creditor, when the pawn is not under the control of a special agreement. But the creditor will be held at his peril to deal fairly and justly with the pledge, both as to the
a Demandray v. Metcalf, Prec. in Ch. 419. Gilbert's Eq. Rep. 104, Kemp v. Westbrook, 1 Vesey, 278. Vanderzee v. Willis, 3 Bro. 21. b1 P. Wm. 261. 1 Bro. P. C. 494.
c 2 Atk. 803.
d De Lisle v. Priestman, 1 Brown's Penn. Rep. 176.
e Glanville, lib. 10. c. 6 and 8.
Perezius in Cod. tom. 2. 63. s. 8.
Huber's Prælec. tom. 3. 1072. s. 6.
Domat, vol. i. 362. s. 9, 10. Ersk.
Inst. vol. 2. 455. Pothier, Contrat de Nantissement, No. 24.
f Art. 2078.
g Art. 3132.
h Code 8. 34. 3. 1. See also Dig. 13. 7. 4.
time of the notice and the manner of the sale.
glish law, especially in the equity courts, is vigilant and jealous in its circumspection of the conduct of trustees.
By 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. Every agreement preventing the right of redemption, in mortgages of chattels as of lands, would, no doubt, be equally condemned in the English law.
A lien upon a pawn may, by agreement, he created to extend to cover subsequent advances. This has been considered to be the law in respect to mortgages and judgments; 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 against a subsequent mortgagee, who had notice of the agreement appearing on the face of the first mortgage ;c 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.d Though there be no express agreement that a pledge for a debt shall be held as a security for future loans, yet if circumstances
7 Cranch, 34. Hendricks v. Robinson, 2 Johns. Ch Rep. 309. Living
ston v. M'Inlay, 16 Johnson, 165.
c Gordon v. Graham, 7 Viner, 52.
Lyle v. Dacomb, 5 Binney, 585.
d Pettibone v. Griswold, 4 Conn. Rep. 158. Stoughton v. Pascos
-5 Conn. Rep. 442.
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.b
In Jarvis v. Rogers, 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 was taken, but for the general balance of accounts, unless there were circumstances to show that the parties did not so intend. And 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 ; and if a factor pledges the goods of his principal,
a Demandray v. Metcalf, Prec. in Ch. 419. 2 Vern. 691.
b Ex parte Ockenden, 1 Atk. 236. Jones v. Smitb, 2 Vesey, jun. 372 Vanderzee v. Willis, 3 Bro. 21. But see Adams v. Claxton, 6 Vesey's 226. where the authority of the two last cases is somewhat disturbed. c 15 Mass. Rep. 389.
d Code, 8. 27. Heinecc. Elem. Jur. sec. ord. pand. p. 4. s. 46. and Hub. Prælec. lib. 20. tit. 6. s. 1. were referred to in support of the doctrine in the civil law, though there were other cases to show that good faith required a restoration of a deposit, upon payment of the specific debt only. Code 4. 31. 14. 4. 34. 11.
e Hoare v. Parker, 2 Term Rep. 376.
the pawnee cannot detain them, not even to the extent of the loan.
As every bailee has a qualified property in the subject of the bailment, and 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.b
V. Of locatum, or hiring for a reward.
This is the fifth and last species of bailment remaining to be examined. This letting to hire is of three kinds; locatio rei, by which the hirer, for a compensation in money, gains the temporary use of the thing; locatio operis faciendi, or letting out of work and labour to be done, or care and attention to be bestowed by the bailee on the goods bailed, for a pecuniary recompense; locatio operis mercium vehendarum, or when goods are bailed to a public carrier or private person, for the purpose of being carried from one place to another, for a stipulated or implied reward.c
(1.) In the case of the locatio rei, or letting to hire, the hirer gains a qualified property in the thing hired, and the owner an absolute property in the price. This is a contract in daily use in the common business of life; and it is very important that the rules regulating it should be settled with clear and exact precision. The hirer is bound only to or dinary care and diligence, and is answerable only for ordinary neglect. This is sufficiently shown by Sir William Jones, in his subtle, but perfectly judicious criticism on the
a Paterson v. Tash, 2 Str. 1178. Daubigny v. Duval, 5 Term Rep. 604 M Combie v. Davies, 7 East, 5.
b Flewellin v. Rave, 1 Bulst. 69. Rooth v. Wilson, 1 Barn. & Ald. 59. c Jones on Bailment, 27. 90.
cases in the English and the Roman law. The hirer is bound to bestow the same degree of diligence that all dent men use in keeping their own goods; and if the thing hired be lost or damaged, by him, or by his servants acting under him, from the want of ordinary care and diligence, he is responsible. The care must rise in proportion to the demand for it; and things that may easily be deteriorated require an increase of care and diligence in the use of them. Negligence is a relative term; and the value of the article, and the means of security possessed by the bailee, are material circumstances in estimating the requisite care and diligence. That may be gross negligence in the case of a parcel of articles of extraordinary value, which in the case of another parcel, would not be so; for the temptation to theft is in proportion to the value. Gaius uses the word diligentissimus, when the rule is applied in the Roman law to the case of an undertaking to remove a column from one place to another.c
(2.) The case of locatio operis faciendi, is where work
a Essay on Bailment, p. 66-69.
Batson v. Donovan, 4 Barn. & Ald. 21.
e Dig. 19. 2. 25. 7. Sir William Jones, in his Essay, p. 67. says, that the superlative diligentissimus was here improperly applied, and that it would be a case only of ordinary care. But Ferriere, in his Commenta ries upon the Institutes, tom. 5. 138. thinks otherwise; and that Gaius was speaking of things that might easily be deteriorated, and would re quire the most exact diligence for their preservation. The case would depend upon circumstances. Gaius was speaking not of unhewn blocks of granite, but of columns, which implied, in the midst of the splendid architecture of Rome, productions of great labour and skill; and in such a case it would, no doubt, require the utmost attention, to avoid injury to the polished shaft or capital; and especially if that capital was finished in the Corinthian style, or surmounted by an entablature, adorned with all the beauty and elegance of the Grecian art.