over the property of third parties, strangers to him who claims, and to him whose property is subject to the lien, as when an innkeeper detains goods hired and brought into the inn by his guest (a). It may attach to property without the owner's consent, as when the tenant for life of shares in settlement is compelled to pay calls upon them (b), or when an administrator or other trustee pays premiums on a life policy, to save it for the estate (c). But not only does it not, in either case, confer a power of sale: it is usually destroyed and forfeited by sale, even when the chattel subject to the lien cannot be kept without expense and trouble, as when a horse left behind by a guest, who had not paid his bill (d), was, after a considerable time, sold by the innkeeper to satisfy his charges, the sale was held to be a wrongful conversion of the horse. By a very recent statute (e) innkeepers have been relieved from the consequences of this decision, and after the lapse of six weeks may now sell goods detained subject to their lien. But as a rule, a lien confers no such right (ƒ), and even when, as in the case of a ship, the lien follows the chattel through changes of ownership, a judicial order is required to justify sale as a means of obtaining payment. In brief, a pawn is distinguishable from an ordinary lien mainly by this, that the contract of pawn carries with it an implication that the security shall be made effectual to discharge the (a) Threlfall v. Borwick, L.R. 7 Q.B. 711, 41 L.J. 266 Q.B., 26 L.T. N.S. 794, 20 W.R. 1032 (and in Ex. Ch.), L.R. 10 Q.B. 210, 44 L.J. 87, Q.B. 32 L.T. N.S. 32. 23 W.R. 312. (b) Todd v. Morehouse, L.R. 19 Eq. 61, 32 L.J. N.S. 8, 23 W.R. 155. (c) Morris v. Caledonian Insurance Co., L.R. 8 Eq. 127; Sharman v. British Empire Insurance Co., L.R. 14 Eq. 4, 41 L.J. 466, Ch., 26 L.T. N.S. 570, 20 W.R. 620. (d) Mulliner v. Florence (in C.A.) L.R. 3 Q.B.D. 484, 47 L.J. 700, Q.B. 38 L.T. N.S., 167, 26 W.R. 385. (e) 41 and 42 Vict., cap. 38. (f) Re The Charles Amelia, L.R. 2 A. and E. 330, 38 L.J. 17 Adm., 19 L.T. N.S. 429, 17 W.R. 624. obligation (a); while a lien gives nothing but a right of retention or detainer, unless by special contract, or under special circumstances (b). The pawnee's power of sale is exercisable upon, but not until, default by the pawnor in redeeming the pawn within due time. When the time is fixed by contract, the pawnee may sell as soon as the time expires; when the time is fixed by statute, the same rule obtains, unless some delay is made necessary by statutory conditions, requiring certain goods to be sold at particular times (c). If no time is specified, either by contract or statute, the pawnee may give the pawnor notice of his intention to sell the pawn, unless the debt be paid within a reasonable time (d). It will be for the Jury to say whether the time allowed in any particular case was reasonable or not. But it must be such a time as would afford the debtor a fair opportunity of getting the money (e). The pawnee cannot lawfully sell unredeemed pledges, even after the expiration of the time fixed for redemption, if the pawnor, before sale, tender the principal and interest due (f), for neither at Common Law nor by Statute, is the property in the pawn absolutely vested in the pawnee by non-redemption. He has the right to retain the pledge, and on the pawnor's default a power to sell it in order to reimburse himself. But if, at any time before the sale has actually taken place, the owner of the goods tender the principal and interest and expenses incurred, he has a right to his goods, and the pawnee is not injured (g), for if the pawnor (a) Per Gibbs, C.J., in Pothonier v. Dawson, 1 Holt's N.P.R., 383. (c) See 35 and 36 Vict., cap. 93, sec. 20, sched. V., par. 6. (d) Story, sec. 308, Pigot v. Cubley, 15 C.B. N.S. 701, 33 L.J. 134, C.P. (e) Massey v. Sladen, L.R. 4 Ex. 13, 38 L.J. 34 Ex.; Wharlton v. Kirkwood, 29 L.T. N.S. 644, 22 W.R. 93; Walter v. Smith, 5 B. & Ald., 439. (f) Walter v. Smith, 5 B. & Ald., 439. (g) Per Abbott, C.J., 5 B. & Ald., 441. pays these charges before sale, the purposes of a sale are answered, and there is no right to sell (a). The words [in 39 and 40 George III., cap. 99, sec. 17] "shall be deemed forfeited and may be sold," mean, not that the things shall become the absolute property of the Pawnbroker, but only that they shall be so far forfeited that the Pawnbroker may take steps towards a sale (b). An exception to this rule, recently established by legislation, will be found noted below. The sale of an unredeemed pawn by the pawnee must be conducted carefully, and without unusual or depreciative conditions (c). When the contract has been made under the Pawnbrokers' Act, such sale must be by auction, conducted as by the Act provided (d). Pledges not under the Act may be sold by auction or otherwise, provided always that the pawnee thereby gets as good a price for the pawn as can reasonably be obtained. It has been said that a pawnee may sue for foreclosure as well as sale (e). Lord Hardwicke, on one occasion, held that a pawnee of personal property need not come to the Court for foreclosure (f), but on principle, it would seem that, as the pawn continues, until sale, to be the pawnor's property (g), some judicial act is necessary to transfer that property to the pawnee, or to constrain him to take the pawn instead of the money he may have lent thereon. And it was very recently held (h) (a) Per Bayley, Holroyd, and Best, J.J., 5 B. & Ald., 442, 443. (c) Exp. Rumball, re Taylor and Rumball, L.R. 6 C.A. 842; Hawkins v. Walrond, L.R. 1 C.P.D. 280, 45 L.J. 772, C.P., 35 L.T. N.S. 210, 24 W.R. 824. (d) 35 & 36 Vict., cap. 93, sec. 19 and Sched. V. See also ante, Cap. X., (e) Kemp v. Westbrook, 1 Ves. 278; Story On Bailments, sec. 310. (s) See ante Caps. VI. and VII. (h) Carter v. Wake, L.R. 4 Ch. D. 605, 46 L.J. 841, Ch. that the remedy which the Court will grant to the pawnee's is not foreclosure, but sale. He will generally be entitled to conduct such sale, but in so acting he will be a trustee for the pawnor, liable to him for gross or wilful default in the sale (a), and bound to pay over to him any surplus produce that may remain after providing for the principal, interest, and costs. Hence, on the familiar equitable principle that a trustee can neither profit by his trust, nor put himself in a position where his personal interest will be adverse to his duty, he cannot contract to sell the pawn to himself or his nominee, nor can he [except under the Pawnbrokers' Act], bid for it at auction (b), for unless the law makes it impossible for him to do anything for his own benefit, it is impossible to see in what case the transaction is morally right (c). Thus it has been said that the only way in which a trustee can purchase property held by him subject to a trust, is to ascertain the highest price the property will fetch in the open market, and then offer more (d). But if there be no bidder or purchaser, the Judge may (e) fix the price to be paid as between pawnor and pawnee, and on payment, the property will vest in the latter, though the Courts are not prone to this jurisdiction, except in very peculiar circumstances. (a) Hawkins v. Walrond, L.R. 1 C.P.D. 280, 45 L.J. 772, C.P., 35 L.T. N.S. 210, 24 W.R. 824; Meyer v. Murray, L.R. 8 Ch. D. 424, 47 L.J. 605 Ch., 26 W.R. 690. (b) Fox v. Mackreth, 2 Bro. C.C. 400, 1 White & Tudor's L.C. 3rd edit., 104 Exp. James, 8 Ves. 337. (c) Exp. Lacey, 6 Ves. 629. (d) Dunne v. English, 18 L.R. 524, Eq., 31 L.T. N.S. 75. Kimber v. Barber, L.R. 8 C.A. 56, 27 L.T. N.S. 526, 21 W.R. 65. See, however, Hickley v. Hickley, L.R. 2 Ch. D. 190, where a purchase at auction by a devisee in trust, at a price within that which he was prepared to give, was supported, though the plaintiffs were infants, and the application was to ascertain whether the sale was for their benefit. (e) Ayliffe P. & Bk. 4, tit. 18, p. 543. If trustees, agents, or others in confidential relationship, have settled accounts with their principals, or cestui que trustent, upon a footing which, as between such persons, the law regards as fraudulent, the accounts so settled may be re-opened (a), and any excess paid or allowed upon the basis of such accounts may be recovered back (b). The aggrieved party may so act as to deprive himself of his right to relief; but unless, with knowledge of facts entitling him to impeach the accounts, he assents to those which have been improperly taken, lapse of time will not validate the transaction (c). In accordance with this principle, the Pawnbrokers' Act, 1872, has forbidden (d) any Pawnbroker to purchase, or contract to purchase, any pledge while in pawn with him, or to allow any pledge to be redeemed with a view to its being purchased by him or to make any contract with the pawnor or owner for the purchase, sale, or disposition of the pawn within the time of redemption. The rule has, however, been so far relaxed as to allow the Pawnbroker to purchase his own pawns at public auction under the Act (e). Sales of pledges on which more than 10s. has been lent under the Pawnbrokers' Act must be made as follows: Not before the lapse of one year and seven days from the date of pawning, exclusive of that day (f). Such sale must be by public auction, conducted according to the rules prescribed by the Act-viz., (Rule 1) Before sale, all pledges (a) Williamson v. Barbour, L.R. 9 Ch. D. 529, 37 L.T. N.S. 698; (b) Swire v. Francis, L.R. 3 A.C. 106, 47 L.J. 18, P.C. 37 L.T. N.S. 554; Morison v. Thompson, L.R. 9 Q.B. 480, 43 L.J. 215, Q.B. 30 L.T. N.S. 869, 22 W.R. 859. (c) Aberdeen Town Council v. Aberdeen University, L.R. 2 A.C. 544. (d) 35 and 36 Vict., cap. 93, sec. 32, sub-sec. 5, 6, 7. |
