representatives of a deceased dormant partner lost all right to recover their share of the partnership assets, because the survivor's name alone had appeared in the business (a). As this last offence involves "an offence against a provision relating to licences," the rule therein laid down will be unaffected by the above quoted section. The Pawnbroker, like other persons aggrieved by any order or conviction under the Act, may appeal to the Court of Quarter Sessions in England (b), or to the next circuit Court, or the High Court of Justiciary in Scotland (c). A Pawnbroker or other person sued or prosecuted for anything done in pursuance or execution, or intended execution of the Act, may plead the same generally, and give the special matter in evidence (d). But as this does not amount to an authority to plead not guilty by Statute, the privilege is, since the Judicature Acts, of very little value. (a) Gordon v. Howden, 12 C. & F. 237; Fraser v. Hill, 1 Macq. H.L.C. 392. (b) 35 & 36 Vict., cap. 93, sec. 52. (c) 35 & 36 Vict., cap. 93, sec. 56, sub-sec. 7. (d) Ibid, sec. 55. CHAPTER IX. THE COMMON LAW LIABILITIES OF THE PAWNEE. The liabilities to be noticed in the present chapter are those which every pawnee impliedly undertakes to discharge by the very fact of receiving goods and chattels in pawn. In one sense, these liabilities arise from duty, as they chiefly relate to the manner in which the pawnee should deal with the pawn. But as, whenever a person consents to assume the character of pawnee, the law implies a promise on his part to perform the duties which such liabilities involve, the obligations thence resulting are more correctly described as arising ex contractu (a). The Common Law liabilities of the Pawnee are- I. To keep the pawn with due and reasonable care. II. To restore the pawn to the pawnor when his debt is discharged, or his obligation fulfilled. III. If the pawn be not redeemed in due time, to sell it in the best manner and for the best price that can reasonably be gotten for it. IV. To render just and true accounts of all profits and advantages derived from the sale or otherwise on account of the Pawn. V. To pay the surplus proceeds to the pawnor. (a) Fleming v. Manchester, Sheffield, and Lincolnshire Railway Coy., L.R., 4 Q.B.D., 81; 39 L.T., N.S., 555; 27 W.R., 481; in C.A. reversing S.C. in Q.B.D., 26 W.R., 741. I The extent of the pawnee's liability as a custodian of the pawn was most accurately stated by Lord Holt, in his celebrated judgment in the case of Coggs v. Bernard (a). "In effect," said his Lordship, "if a creditor takes a pawn, he is bound to restore it upon the payment of the debt; but yet it is sufficient, if the pawnee use true diligence, and he will be indemnified in so doing, and notwithstanding the loss, yet he shall resort to the pawnor for the debt." It is, however, by no means easy to fix the precise meaning of the term "true diligence," as thus employed. As stated by Justinian, such diligence must be exact and extreme. Quia pignus utriusque gratia datur, placuit sufficere quod ad eam rem custodiendam exactam diligentiam adhiberet; quam si præstiterit, et aliquo fortuito casu eam rem amiserit, securum esse nec impediri creditum petere (b). And the measure of this exacta diligentia is defined by a passage in the Digest (c), "ea igitur quæ diligens paterfamilias in suis rebus præstare solet, a creditore exiguntur." As stated by Lord Coke, the test of such diligence is whether the pawnee fronted we be a mia fey Cass has kept the pawnor's goods no otherwise than his own (d),/ but this can hardly be accepted as an accurate measure of the pawnee's liability. It makes the care to be taken, vary with the habits of each individual pawnee, and it encourages neglect, because, in the event of loss, the more neglectful the pawnee, the greater would be his chance of escape, when sued by an aggrieved pawnor. Hence, after being elaborately discussed and refuted by Sir Wm. Jones (e), it was distinctly repudiated by the Court of Queen's Bench, though the circumstances of the case somewhat favoured its adoption (f). The defendant was a coffee (a) 2 Salk., 909; 1 Smith's L.C., 7th edit., 188. (d) 1 Inst., 89a, 4 Rep., 83b. (e) Treatise on Bailments, 75. house keeper, to whom the plaintiff, a customer, had entrusted a sum of money which, together with his own cash, the defendant placed in a drawer in his shop, whence it was stolen. The jury found for the plaintiff, thinking that the defendant had been negligent in putting such a sum in such a place, and the Court refused to disturb the verdict. It will be observed that the defendant was held liable, not because the thing bailed had been stolen while in his custody, but because he had so kept it as to offer facilities and opportunities for robbery. Sir William Jones was of opinion that though the pawnee was not responsible for open and violent robbery, loss of the pawn by stealthy and private theft, was of itself, presumptive evidence of negligence (a). But it may now be regarded as settled law, that theft, whether secret or open, is not enough, per se, to fix the pawnee with liability. If the theft has been caused or invited by the pawnee's neglect, he is liable; if not, he is discharged (b). In Roman and continental law, the onus probandi is on the pawnee, to show the loss of the pawn to have arisen from unavoidable casualty, superior force, or intrinsic defect (c). And though, with us, the burden of proof is on the pawnor, Story observes (d), that the Common does not probably differ from the Roman, when a suit is brought for the restitution of the pawn, after such due demand and refusal as would ordinarily be evidence of a tortious conversion of the pawn. It would then be incumbent on the pawnee to give some evidence of loss by casualty, or by superior force, independent of his own statement, unless indeed, upon the demand and refusal, he should state the (a) Treatise on Bailments, 44, n. 79. (b) Story on Bailments, sec. 338; 2 Kent's Com., 580, 581. circumstances of the loss; and then the whole statement must be taken together, and submitted to the jury, who would, under all the circumstances, decide whether it was a satisfactory account or not (a). But if, as in the case above cited, the pawnor should sue the pawnee for a negligent loss of the pawn, he must support his allegations by proper proofs, and the onus probandi in respect of negligence would be on him. And the bailee's acts and remarks, contemporaneous with the loss, are admissible evidence in his favour, to establish the nature of the loss (b). In connection with this question, Sir William Jones mentions (c) a provision contained in the ancient laws of the Wisigoths, and in the capitularies of Charlemagne and Lewis the Pious, by which a depositary of gold, silver, or valuable trinkets, is made chargeable, if they are destroyed by fire, and his own goods perish not with them; a circumstance which some other legislators have considered as conclusive evidence of gross neglect or fraud. He also mentions a provision in the northern code which he had not seen in that of any other nation: viz., that if precious things were deposited and stolen, time was given to search for the thief, and if he could not be found within the time limited, a moiety of the value was to be paid by the depositary to the owner, ut damnum ex medio uterque sustineret. It is said in a passage quoted by Sir William Jones from Ulpian-" Contractus quidam dolum malum duntaxat recipiunt; quidam et dolum et culpam. Dolum et culpam, mandatum, commodatum, venditum, pignori acceptum, locatum (d). And the reason is given in another (a) Isaack v. Clarke, 2 Bulst., 306; Shiels v. Blackburne, 1 H.Bl., 158 Doorman v. Jenkins, 2 Ad. & E. 256, 4 Nev. & M. 170, 2 C.M. & K. 659. (b) Doorman v. Jenkins, ut supra. (c) Treatise on Bailments, 112. (d) Dig. Lib. 50, tit, 17, 1. 23. |
