which is now the rule on the continent of Europe and in Scotland, required a judicial sentence to warrant the sale. (a) The Code Napoleon (b) has retained the same check, and requires

a judicial order for the sale; and the Code of Louis*583 iana (c) has followed the same regulation. The civil law allowed the pawnee to sell, in case of default of payment, and after due notice on his own authority; but if there was no special agreement, it required a two years' notice to the debtor, by an order of Justinian. (d) The English and American law, with the exception of Louisiana, agree in the prompt and easy remedy which they place in the hands of the creditor, when the pawn is not under the control of a special agreement; and there is not any distinction as to the right to sell between the case of a pledge, and of a mortgage of chattels. (e) But the creditor will be held at his peril to deal fairly and justly with the pledge, both as to the time of the notice and the manner of the sale. The law, especially in the equity courts, is vigilant and zealous in its circumspection of the conduct of trustees. (ƒ)

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

(a) Glanville, lib. 10, ch. 6, 8. Huber's Prælec. tom. iii. 1072, sec. 6. Perezius in Cod. tom. ii. p. 63, sec. 8. Domat, vol. ii. p. 362, sec. 9, 10. Ersk. Inst. vol. ii. p. 455. Pothier, Traité du Contrat de Nantissement, No. 24. 2 Bell's Com. 22, 5th edit.

(b) Art. 2078.

(c) Art. 3132.

(d) Code, 8, 34, 3, 1. See also Dig. 13, 7, 4. Pothier, Pand. 20, 4, n. 18, 19. (e) Hart v. Ten Eyck, 2 Johns. Ch. Rep. 62, 100. Patchin v. Pierce, 12 Wendell, 61.

(f) Cortelyou v. Lansing, 2 Caines's Cases in Error, 200. Hart v. Ten Eyck, 2 Johns. Ch. Rep. 62. See also infra, vol. iv. p. 139, S. P. The holder of hypothecated stock cannot, on default, without an express stipulation, have it sold at the board of brokers. It must be sold at public auction on responsible notice. By A. V. Ch. in Castello v. City Bank of A., 1 N. Y. Legal Observer, 25.

1 If a note held as collateral security for a debt is sold by the creditor, he is presumed to have taken it in payment of the debt. Cocke v. Chaney, 14 Ala. 65. Hawks v. Hinchcliff, 17 Barb. 492.

oppressive, and having a growing asperity in practice. (a) Every agreement preventing the right of redemption, in mortgages of chattels, as of lands, would, no doubt, be equally condemned in the English law. (b)

* 584

The pledge covers not only the debt, but the interest upon it, and all necessary expenses that may have attended the possession of the pledge; and the lien may, by agreement, be created to extend to cover subsequent advances. This has been considered to be the law in respect to mortgages and judgments; (c) but the power is subject to some qualifications, 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; (d) and in Connec ticut, 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. (e) Though there be no express agreement that a pledge for a debt shall be held as security for future loans, yet if circumstances 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. (f) 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. (g)

(a) Code, 8, 35, 3. Hub. tom. iii. 1038, sec. 17. 1 Domat, 362, sec. 11. Pothier, de Nantissement, n. 18.

(b) Cortelyou v. Lansing, 2 Caines's Cases in Error, 200. Garlick v. James, 12 Johnson's Rep. 146.

(c) United States v. Hooe, 3 Cranch's Rep. 73. Shirras v. Caig & Mitchel, 7 ibid. 34. Hendricks v. Robinson, 2 Johns. Ch. Rep. 309. Livingston v. M'Inlay, 16 Johns. Rep. 165. Lyle v. Ducomb, 5 Binney's Rep. 585. See infra, vol. iv. p. 175. (d) Gordon v. Graham, 7 Viner's Abr. 52, E. pl. 3.

(e) Pettibone v. Griswold, 4 Conn. Rep. 158. Stoughton v. Pasco, 5 ibid. 442. Crane v. Deming, 7 ibid. 387.

(f) Demandray v. Metcalf, Prec. in Ch. 419. 2 Vern. Rep. 691. Gilliat v. Lynch, 2 Leigh's Rep. 493.

(9) Ex parte Ockenden, 1 Atk. Rep. 236. Jones v. Smith, 2 Vesey, jr. 372.

In Jarvis v. Rogers, (a) 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 * 585 the pledge was taken, but for the general balance of accounts, unless there were circumstances to show that the parties did not so intend. (b) 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; (c) and if a factor pledges the goods of his principal, the pawnee cannot detain them, not even to the extent of the loan. (d) And if there be various claims upon the fund after the pledge has been duly sold, the party who was in possession of the pledge is to be first satisfied his debt. (e) 2

1

Vanderzee v. Willis, 3 Bro. 21. But see Adams v. Claxton, 6 Vesey, 226, where the authority of the two last cases is somewhat disturbed. Jarvis v. Rogers, 15 Mass. Rep. 389, 397, 414. Story on Bailments, § 304.8

(a) 15 Mass. Rep. 389.

(b) Code, 8, 27. Heinec. Elem. Jur. sec. ord. Pand. 4, sec. 46, and Hub. Prælec. lib. 20, tit. 6, sec. 1, were referred to in support of the doctrine in the civil law. Pothier, in his Traité da Contrat de Nantissement, No. 47, lays down the same rule, and it also exists in the Scottish law. 2 Bell's Com. 22, 5th edit.

(c) Hoare v. Parker, 2 Term Rep. 376.

(d) Patterson v. Tash, 2 Str. Rep. 1178. Daubigny v. Duval, 5 Term Rep. 604. M'Combie v. Davies, 7 East's Rep. 5.

(e) Marshall v. Bryant, 12 Mass. Rep. 321. This was also the rule in the civil law. Dig. 50, 17, 128. Story on Bailments, § 312, 313.

1 And not even against a subsequent purchaser from the factor, acting within the scope of his agency. Nowell v. Pratt, 5 Cush. 111. Contra, Bott v. McCoy, 20 Ala. 578. See, however, on this subject, p. [* 628,] n. b.

2 At common law, goods pawned or pledged are not liable to be taken on execution against the pledgor or pawnor; but under the New York Statutes, (2 R. S. 366, § 20, 2d ed.) the sheriff may take goods from the possession of the bailee, and sell the interest of the bailor; after which the bailee will be entitled to the possession. Stief v. Hart, 1 Comst. R. 20.

8 Robinson v. Frost, 14 Barb. 536.

As every bailee is in the lawful possession of the subject of the bailment, and may justly be considered, notwithstanding all the nice criticisms to the contrary, as having a special or qualified property in it for the protection of that possession; and as he 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. (a)

V. Of locatum, or hiring for a reward.

*

* 586

This is the fifth and last species of bailment remaining to be examined. It is a contract by which the use of a thing, or labour or services about it are stipulated to be given for a reasonable compensation, express or implied. (b) It includes the thing let, the price or recompense, and a valid contract between the letter and hirer. (c) This bailment or letting for hire, is of three kinds: locatio rei, by which the hirer, for a compensation, gains the temporary use of the thing; locatio operis faciendi, or letting out of work and labor to be done, or care and attention to be bestowed by the bailee on goods bailed for a recompense; locatio operis mercium vehendarum, as 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. (d)

(a) Flewellin v. Rave, 1 Bulst. Rep. 68. 2 Blacks. Com. 395.

Rooth v. Wilson,

1 Barn. & Ald. 59. Faulkner v. Brown, 13 Wendell, 63. Thayer v. Hutchinson, 13 Vermont Rep. 504. See supra, p. 568, and see Story on Bailments, § 94, 279, 280. The pawnee may maintain replevin against the pawnor as well as against a stranger, for a wrongful taking of the goods pledged. Story on Bailments, § 303.

Boyd, Kerr's N. B. Rep. 150.

Gibson v.

(b) 1 Bell's Com. 255, 451, 5th edition. Story on Bailment, § 374-377. (c) Pothier, Traité du Contrat de Louage, No. 6. Story's Com. § 372. The books usually follow the civil law, and consider the price as being payable in money; but the contract at common law may be classed under the head of location, or locatio conductio rei, be the recompense what it may. Ibid. § 377.

(d) Coggs v. Bernard, 2 Lord Raym. 909. Jones on Bailment, 85, 90. The letter or owner who lets out the thing for hire, is called in the civil law locator; and the hirer, who has the benefit of the thing for a compensation, the conductor; and the bailment or contract for hire itself, is called locatio or locatio-conductio, or, in English, location; and this is the language used in the Scottish law. 1 Stair's Inst. b. 1, tit. 15, sec. 1, 5, 6. Wood's Inst. of the Civil Law, 236. Story on Bailments, § 368, 369.

(1.) In the case of the locatio rei, or letting to hire, the hirer gains a special property in the thing hired, and the letter to hire an absolute property in the price, and retains a general property as owner in the chattel. 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 letter, according to the civil law, is bound not to disturb the hirer in the use of the thing during the period for which it was hired, and to keep the subject in suitable order and repair, and to pay for extraordinary expenses necessarily incurred upon it. (a) But the extent of the obligations of the letter, under the common law on the point of repairs and expenses, remains to be defined and settled by judicial decisions. (b) The hirer is bound to ordinary care and diligence, and is answerable only for ordinary neglect; for this species of bailment is one of mutual benefit. He is bound to use the article with due care and moderation, and not apply it to any other use, or detain it for a longer period than that for which it was hired. (c) The responsibility of the hirer is sufficiently shown by Sir William Jones, in his subtle but perfectly judicious criticism on the cases in the

English and the Roman law. (d) The hirer, says Pothier, * 587 is only held to a common diligence, and answerable only for slight neglect. He is bound to bestow the same degree of diligence that all prudent men use in keeping their own goods, and to restore the article in as good condition as he received it, unless it be deteriorated by internal decay or by ex

(a) Pothier, Traité du Contrat de Louage, Nos. 77, 106, 107, 130, 139. Civil Code of Louisiana, art. 2663, 2664. 1 Bell's Com. 453, 5th edit.

(b) Story's Com. § 392.

(c) Pothier, Traité du Contrat de Louage, 180. Johnson, J., in De Tollenere v. Fuller, 1 Const. Rep. S. C. 121. Wheelock v. Wheelwright, 5 Mass. Rep. 104. Story's Com. § 397, 398, 413-415.

(d) Essay on Bailment, 66-69.

1 If the thing hired be used for any other purpose, the hirer will be liable for any damage which it may receive. Duncan v. Railroad Co. 2 Rich. R. 613. Mayor of Columbus v. Howard, 6 Geo. R. 213. In Harvey v. Epes, 12 Gratt, 153, it was held, after a thorough examination of the cases, that where chattels, hired for a term, were lost during a misuser, trover would not lie unless the misuser was the occasion of the loss; but the burden was on the bailees to prove that the loss was not occasioned by their wrongful act.