requiring further advances, afterwards makes a second pledge to secure both debts, the proceeds of the first pledge will be first applied to the old debt, and then those of both pledges to the subsequent advances (a).

If there be several debts and one payment, with no circumstance to show which debt it was intended to reduce, the payment will be applied to all rateably (b).

If the pawnee should have sold the pawn before the time limited for redemption, or after the pawnor's application to redeem and tender of the money due, he will be liable to the pawnor for the full value of the pawn, less the debt due thereon (c).

If a mortgagee sells, under his power of sale, to a bond fide purchaser, without notice, the sale cannot be set aside, even though, on taking accounts between mortgagor and mortgagee, it should be found that the mortgage had been satisfied, and the sale was consequently improper (d), the mortgagor being left to his remedy against the mortgagee (e). It is submitted that under similar circumstances a pawnor could recover his goods from a purchaser who had bought from a pawnee, selling after payment or demand, whereby "the pawn is instantly reduced into possession (f)." But a sale of mortgaged, (and presumably of pawned), property, if made under judicial authority, and confirmed in regular course, will not be set aside, unless upon proof of fraud or improper conduct (g).

(a) De Rochefort v. Dawes, L.R. 12 Eq. 540, 40 L.J. 625 Ch. D., 25 L.T. N.S. 456.

(b) Thompson v. Hudson, L.R. 6 C.A. 320, 40 L.J. 28 Ch., 24 L.T. N.S. 301, 19 W.R. 645.

(d) Dicker v. Angerstein, L.R. 3 Ch. D. 600, 45 L.J. 754 Ch., 24 W.R. 844. (e) As in Cockburn v. Edwards, L.R. 16 Ch. D. 394.

(f) Coggs v. Bernard, 2 Ld. Raym. 909, 1 Smith's L.C., 7th edit., 188. (g) Re Bartlett, Newman v. Hook, L.R. 16 Ch. D. 561.

N

A Pawnbroker must account to the pawnor of a pledge above 10s. for surplus on sale of the pawn, if application be made within three years of sale, and subject to set-off of deficit occurring within 12 months of the surplusproducing sale (a).

The right of the pawnor to overplus involves the corollary that if the security prove insufficient, the deficiency continues a personal charge on the pawnor, and may be recovered accordingly, because, although the security ceases, yet the duty remains, as the money lent is not repaid. And in such case the law will not deprive the lender of his remedy against the person; for to discharge the person of the borrower, there must be a special agreement to stand to the pledge only (b). If there be no such agreement, possession of the pawn does not prevent the pawnee from proceeding personally against the pawnor to recover the debt, for the pawn is only a collateral security (c). If the pawnor sue the pawnee for the destruction or conversion of the pawn, the pawnee may give evidence of the debt due to him in reduction of damages (d), or may either bring his action to recover the amount, or set up his loan and interest by way of counter-claim (e). So, if before sale, the pawn has perished or become deteriorated in value without the pawnee's default, the pawnee may sue the pawnor for the debt (ƒ). A fortiori, if the sale of the pawn fails to produce sufficient to pay the pawnee's debt, the pawnor is personably liable to make good the deficit (g).

(a) 35 & 36 Vict., cap. 93, sec. 22, and Scheduled Forms of Ticket; see Caps. XI. and XII.

(b) South Sea Co. v. Duncomb, 2 Str. 919.

(d) Ratcliffe v. Davis, 1 Bulst. 31.

(c) Ibid.

(e) 36 & 37 Vict. cap. 66, sec. 24, and Judicature Acts, Order 19, rule 10,

Order 22, rules 5, et seq.

(f) Ante, Cap. X.

(9) Bac. Ab. tit. Bailment (B.), South Sea Co. v. Duncomb, 2 Stra. 919 Coggs v. Bernard, Ld. Raym. 909, 1 Smith's L.C., 7th edit. 188.

The right of the pawnee to sue the pawnor personally may, however, be qualified or suspended by equitable circumstances. Mr. Cobbett (a) cites a case from a M.S. Year Book in Lincoln's Inn Library (temp. Edward I.), in which a defendant, in an action of debt for money lent, pleaded that she had deposited jewels with the plaintiff as a security for the repayment of the loan, which jewels the plaintiff had not returned. The Court refused to give judgment for the plaintiff, saying that they had no power to award restitution of the deposit. So when a mortgagee sued his mortgagor for the mortgage debt, the Court of Chancery, on the defendant's application, restrained proceedings, on payment of the money into a bank, there being some doubt as to whether the mortgagee was in a condition to restore the deeds to his mortgagor (b). And Story (c) mentions a case in Massachussetts (d) in which it was held that if a pawnee causes the pawned goods to be attached in a personal suit against the pawnor for the very debt for which they were pledged, the right to the pledge is gone; though not, it seems, when the suit is for other debts (e); and a third case, in which a pawnee was held to have no right to attach other property of the pawnor for the debt secured by the pawn, without first returning the pawn (ƒ), though these appear to be authorities of local rather than of general application.

The Pawnbrokers' Act recognizes the personal liability of the pawnor, by giving the pawnee a limited right to setoff deficit on the sale of one pledge against the surplus proceeds of another (g). As the Act does not make the

(a) Cobbett On Pawns, 46.

(b) Per Redesdale, L.C., Schoole v. Sall, 1 Scho. & L. 177.
(c) Treatise On Bailments, sec. 366.

(d) Swett v. Brown, 5 Pick. (U.S.) R. 178.
(e) Townsend v. Newell, 14 Pick. (U.S.) R. 332.
(f) Cleverly v. Brackett, 8 Mass. (U.S.) R. 150.
(9) 35 & 36 Vict., cap. 93, sec. 22.

pawnor's debt recoverable in a Court of Summary Jurisdiction (a), proceedings must be taken in the County or other Civil Court (b).

(a) 35 & 36 Vict., cap. 93, secs. 45, 56, make offences under the Act cognizable by Courts of Summary Jurisdiction, but the Act is silent as to the pawnor's failure to pay deficit.

(b) Singer Manufacturing Co. v. Clark, L.R. 5 Ex. D. 37, 49 L.J. Ex. 224, 41 L.T. N.S. 591. 28 W.R. 170.

CHAPTER XIV.

EFFECT OF THE DEATH OF PARTIES.

It has been said that where goods are pawned generally, without any day of redemption, and the pawnor dies, the pawn is absolute and irredeemable; but that if the pawnee dies, it is not so (a). In the case of Ratcliff v. Davis (b), to which reference has so frequently been made, it was said that though the pawnee delivers over the pawn to a stranger, and afterwards dies, the money must be tendered to his executor, and not to the stranger, for the delivery makes but the naked custody of it, and if the delivery had been on consideration, it does not alter the case, for the stranger is not privy to the first contract of pawning, nor to the condition. But this ruling has been reversed by more modern decisions, which show that if the pawnee lawfully transfers his rights to a sub-pawnee, he transfers his remedies also (c). In harmony with this principle, it is now clear that the right to redeem is not lost by the death of the pawnor, but goes to his personal representatives. As where A borrowed £200 on pawn of some jewels and plate worth about £600, taking a note from the pawnee, and afterwards borrowed at several times, three other sums of money of the pawnee, for which he gave his note, without referring to the jewels. The executors were admitted to redeem, though only on payment of the money due on the notes as well as on the pawn (d). And in Vanderzee v.

(a) Noy 137, 3 Salk., 267. (b) Cro. Jac., 244, Yelv. 178, 1 Bulst. 29. (c) Donald v. Suckling, L.R. 1 Q.B. 585, 35 L.J. 232 Q.B., 14 L.T. N.S. 772, 15 W.R. 13; Halliday v. Holgate (in Ex. Ch.) L.R. 3 Ex. 299, 37 L.J. 174 Ex., 18 L.T. N.S. 656, 17 W.R. 13.

(d) Demandray v. Metcalf, Prec. Ch., 419.