T h e pawnee
may demand
payment o f
his debt*, and-
imprifon the.
pawner in
cafe o f contumacy.
I t is required'
ofthepawnee,
before payment,
to produce
the
pledge;.
but i f he de-
mand payment
in a
the parties fhall mutually return the excefs, in cafe of [ale, (that is to
fay, i f the pawner fe ll the pledge,) not in cafe of dejlruction, for
he has elfewhere declared the furplus to he held by the pawnee
in trujl.
It is lawful for the receiver of a pledge to make a demand of his.
debt, and even to imprifon the pawner in cafe of refufal; becaufe the
claim flill exifts after the receipt of the pledge, which is not confi-
dered as a fulfilment, but merely as a prefervativc of it. The pawnee,
therefore, is not prohibited from making the demand; and if the
eiroumftance of the evafions and delays of the pawner be made
known to the Kazee, he mull imprifon him, as has been formerly
explained * .
W h e n e v e r a pawnee demands payment o f his debt, it is requifite
that the Kazee order him firft to produce the pledge; becaufe as he
poffefles that for the purpofe of obtaining payment, it is not lawful for
him to take his due at the feme time that he retains pofieffion of the
pledge, which he holds as a fecurity ; fmce if, in fuch cafe, the pledge
were to perifh in his hands, a double• payment would be induced,,
which isinadmiffible. And when the pawnee fhall have produced
the pledge, the Kazee mud order the depofitor firft to difcharge the
debt, in order to afcertain the pawnee's right, in the fame manner as
the right of the pawner is afcertained, to the end that both may be
placed upon- an. equal footing; as in the cafe of bargains, where
the feller having produced- the goods,- the buyer then lays down the
purchafe-money;
If the pawnee demand payment in a city different from that wherein
the contract of pawn was concluded, and the pledge be of fuch-a
nature as neither to require charge of carriage or expence, the fame
rules which have been laid down in other cafes hold good in this; as
the place for the furrender of a pledge of this kind being entirely immaterial
and .indifferent, the doctors have therefore affigned no particular
rules or conditions regarding it. If, on the contrary, the pledge
be o f fuch a nature as to require carriage and charges of removal, the
pawnee is not defired to produce i t ; for fuch a requifition would necef-
farily oblige him to have it carried from place to place. It is, moreover,
incumbent on him to relinquifh the pledge to the pawner, and
to allow him to refume i t ; but he is not required to remove it from
one place to another, as that would be a lofs to him which he had not
ftipulated.
dijlant place,
he is not required
to produce
it unlefc
this can be
done without
expence.
I f the pawner empower the truflee * to fell his pledge, and he
fell it accordingly, either for ready money or on credit, it is lawful,
the power of the pawner to fell it being indifputable. If, therefore,
the pawnee afterwards demand payment, he is not defired to produce
the pledge, as that, in fuch cafe, is not in his power.— The fame rule
alfo holds where the pawnee, at the inftance of the pawner, having
fold the pledge, does not poffefs himfelf o f the purchafe-money; for
then the Kdzee may compel the pawner to difcharge his debt, without
requiring the pawnee to produce the pledge, which, becaufe o f
its having been fold at the defire of the pawner, has become converted
into a debt,— wherefore the pawner himfelf did, as it were, pawn the
purchafe-money, (that is, the debt.)— If, on the contrary, the
pawnee poflefs himfelf o f the purchafe-money, he mull: in that cafe
* Arab. A d il; meaning (literally) an upright perfon,— one in whofe hands the parties
mutually agree that the pledge fhall remain until it be redeemed. T h e tranllator fub-
ftitutes the term truflee throughout this book, becaufe (although not the literal meaning
of A dil) it beft expreffes the fenfe o f the author.
he
T h e pledge
may be fold,
at the defire
ofthepawnerj
and the
pawnee cannot
afterwards
be required
to produce
it*
In treating o f the duties o f the K a z e e . (See V o l. I I . p. 624.);
nature
C c 2