while in the plaintiff's possession, and retained them, so that, when W. was arrested and convicted, no order of restitution was asked or required. The plaintiff then sued for the value of the sheep, and after taking time to consider, the Court held that the defendant's contract with W. was not void, but voidable only. Hence the property in the sheep remained in the buyer till defendant had repudiated the contract, and as meanwhile, the fraudulent buyer had parted with the thing sold, the title of the original owner could not prevail against that of an innocent purchaser [or pawnee]. Money found on a prisoner may be ordered by the Court to be given to the purchaser (a) of property not known by him to be stolen, on the making of an order of restitution (b). A Pawnbroker selling gold and silver plate, must take out an Inland Revenue licence (which will expire on July 5 in each year), under a penalty of £50 (c). In Edinburgh, a Pawnbroker may not act as a broker. Nor may he keep melting pots upon his premises (d). A Pawnbroker is liable to a penalty of £5 if Naval Stores be found in his possession (e). Conviction of this offence is equivalent to conviction under the Metal Dealers' Act, 1861 (ƒ), in addition to other penalties (g). Pawnbrokers in the Dockyard Towns of Chatham, Deptford, Pembroke, Portsmouth, and Woolwich, are (a) A mortgagee, and semble, a pawnee, comes within this description. (b) 31 & 32 Vict., cap. 29, sec. 1. (c) 30 & 31 Vict., cap. 90, sec. 3, under which the higher rate of duty is payable when the thing sold exceeds 2 oz. in weight, though the gold therein contained is less than that weight, being alloyed with baser metal. Young v. Cook, L.R. 3 Ex. D. 101, 47 L.J., 28 M.C., 37 L.T. N.S. 536, 26 W.R. 100. (e) 32 & 33 Vict., cap. 12, sec. (d) 31 & 32 Vict., cap. 51. (f) Ibid, sec. 7. (g) Ibid, sec. 12. liable to penalties if they take Naval Stores in pawn from any seaman or other person (a). Until 1872, a Pawnbroker who failed to observe the statutory directions for the conduct of his business, acquired no right of action in respect of any transaction whereby these rules were violated (b), but such default does not now make the contract void, unless the offence be committed against some provision of the act relating to licences (c). (a) 32 & 33 Vict., cap. 57, secs. 2 & 4. (b) Fergusson v. Norman, 5 Bing. N.C., 76, 6 Scott, 794, 1 Dru. 411; Fraser v. Hill, 1 Macq. H.L. Ca. 392; Armstrong v. Lewis, 4 Moo. & S. 1, 2 Cr. & M. 274; Armstrong v. Armstrong, 3 My. & K. 45. (c) 35 & 36 Vict., cap. 93, sec. 51. See also ante, Cap. III.,-ON INVALID AND UNLAWFUL PLEDGES. In CHAPTER XI. OF THE REDEMPTION OF THE PAWN. pawns, as in mortgages, a right to redeem is a necessary incident of the contract. But the nature and extent of that right differs materially in the two cases. At Common Law, a mortgagor lost his right to redeem unless he paid or discharged the mortgage debt or other engagement on the day, and in the manner appointed, for the grand object was that the money should be paid at the day, and therefore the heir of the mortgagor could only redeem, for when payable generally, payment could only be made during the mortgagor's life, and when he died, the time of the tender was past (a). "If he" (the mortgagor) "doth not pay, then the land which is put in pledge upon condition for the payment of the money, is taken from him for ever, and so dead to him." Hence the term mortgage, or mortuum vadium, as distinguished from pledge, or vivum vadium, quia nunquam moritur (b). In course of time, the Court of Chancery, in the exercise of its equitable jurisdiction, softened the rigour of the Common Law, and preserved to the mortgagor that right to redeem, of which he would otherwise have been deprived. But the legal estate in, and ownership of, the land or other thing mortgaged, was in the mortgagee, both by law and equity (c). Till the day fixed for payment, the mortgagor could claim to redeem by virtue of his contract. Afterwards, he had only an equitable estate or right, known as the equity of redemption, which was formerly enforceable only in the Court of Chan (a) Reeves's History of English Laws, 338. (b) Co. Litt. 332, 205 a. (c) Com. Dig. Tit. Chancery, Mortgage (4 a, 1.) cery, but which is now, like other equitable estates and interests, recognized in all Divisions of the High Court of Justice (a), though actions for redemption and foreclosure of mortgages are specially assigned to the Chancery Division (b). As already explained (c), the pawnee acquires only a right to the possession of the pawn, and a qualified property therein, the general property remaining in the pawnor. Therefore, as the pawnor has never parted with such general property, he has at law, as well as in equity, a right to redeem, even though he has failed to comply with the conditions of redemption (d), as by coming to redeem until after the time limited by the contract has expired (e), and if no day be appointed, he may redeem at any time (ƒ). Even if the contract expressly stipulates that payment shall be made "on demand, without any delay whatever," a reasonable time after demand must be allowed for payment (g). Hence it has been said that if a clause is inserted in the original contract, providing that if the terms of the contract are not strictly fulfilled at the time and in the mode prescribed, the pledge shall be irredeemable, such a "penal clause will be of no avail, for the common law deems such a stipulation as unconscionable and void, on the ground of public policy, as tending to the oppression of debtors" (h). The Roman law treated such a stipulation as a mere nullity, though an agreement that on default in payment, the pawnee might take the pledge at a (b) Ibid. sec. 34. (d) Com. Dig. Tit. Mortgage (B). (a) 36 & 37 Vict., cap. 66, sec. 24. (c) Ante Cap. VI., pp. 70, 78. (e) Vaughan v. Watt, 6 M & W. 492. (9) Massey v. Sladen, L.R. 4 Ex. 13, 38 L.J., 34 Ex.; Exp. Trevor, re Burghardt, L.R. 1 Ch. D. 297, 45 L.J., 27 Bk., 33 L.T., N.S. 756 24 W.R., 301. (h) Story On Bailments, sec. 345, citing Cortelyon v. Lansing, 2 Cain. Cas. in error, 200. stipulated price, was valid, provided the price so fixed was fair and reasonable, and the transaction bona fide (a). This beneficent doctrine is said to have been adopted in England at least as early as the time of Glanville (b), but the passage relied upon does not support the proposition. It runs thus:-"When a thing is pledged for a definite period, it is either agreed. . . that if, at the time appointed, the debtor should not redeem his pledge, it should then belong to the creditor, so that he might dispose of it as his own; or no such agreement is entered into between them. In the former case, the agreement must be adhered to." In the latter, the creditor sued his debtor by a special writ to appear and show cause "why the thing should not irrevocably belong to the creditor." If the debtor appeared and confessed the debt, he was commanded at a reasonable period to redeem his pledge, failing which it became the creditor's property (c). But the passage above cited shows that the pawnor could not avail himself of this process when the pawn was made irredeemable by his contract with the pawnee, though he might, by denying the debt, put the creditor to prove the pledge, and the terms on which it was made. In a recent case, involving the same principle, the plaintiff sued a railway company for the return of ten shillings, deposited on the issue of a season ticket to him, on condition (inter alia), that if the ticket was not re-delivered the day after expiry, the deposit should be forfeited. The plaintiff delivered the ticket within a reasonable time, but not on the precise day mentioned, and the Exchequer Division, reversing the decision of the Southwark County Court Judge, held the condition binding, and the plaintiff not entitled to the (a) Story On Bailments, sec. 345, citing 1 Domat. B. 3, tit. 1, sec. 3, art. 11, Pothier, De Nantissement, n. 18. (b) Story On Bailments, sec. 346. |