M l
the^ holder
o f it :
and which ftill remains in the hands of the feller; for if the purchafer
be defirous of taking a pledge from the feller to anfwer the delivery,
it is invalid, an article fold not being infured in the hands of the feller,
(Still, however, if the article fold perilh in the feller’ s hands, his
claim on the buyer for the price ceafes; or, if he fhould have previ-
oufly received the price from the buyer, he muft reftore it.)— With
refpeft, on the contrary, to articles which fubjedt the holder to re-
fponfibility, (that is, thofe for which, when deftroyed, the holder is
refponlible,— for a Jimilar, i f o f the clafs of fimilars;—or for the value,
i f of a different defcription,— fuch as ufurped property, the confidera-
tion for Khoola, the dower to a wife, and the compofition for wilful
murder,) it is lawful to take pledges for them, as relponfibility
attaches to all fuch matters, fince i f the article be extant the delivery
o f it is incumbent, or the value i f it be deftroyed. Oppofing a pledge
-to fuch articles, therefore, is taking a pawn in fecurity for that which
is itfelf a tubjedt of relponfibility, and is confequently valid.
l i i i i
ililflipil iKM
ÜI
nor as a fecurity
againft
contingencies.
I t is not lawful to take a pledge as a fecurity againft contingencies;
— in other words, if a perfon fell an article and receive the price, and
the purchafer, from an apprehenfion that the property might afterwards
prove the right of another, and that he might thereby be rendered
liable to a lofs, fhould on that account demand a pledge from
the merchant fecuring him againft fuch a circumftance, it is invalid;
for it is an eftablilhed maxim that a pledge is to be taken as a fecurity
for the difcharge of a claim then extant; and in the above cafe the
claim does not exift, but-is only what may poffibly happen. If, therefore,
a pledge be in fuch a cafe taken, it is conlidered as taken in trufi,
and not in pawn, and is in no refpedt fuhject to the laws o f pledges.
In a fimilar manner, i f a perlon depolit any thing in pledge with another,
in fecurity for any thing which may in future be due from
him, it is invalid.— It is, indeed, otherwife in the cafe of a promifed
debt ;p-as where a perfon gives' a pledge to another on the ftrength of
his promifing to lend him one thoufand dir ms, and the other takes the
pledge
P A W N S . 209
pledge and promifes to lend the money, and the pledge perilhes in
his hands; for in this cafe he is refponlible in proportion to the fum
promifed, in the fame manner as i f it had been aftually paid, the
promife of debt being conlidered as an adtual exiftence of it, for this
reafon, that it was made at the earned: delire of the borrower.
I f a perfon, having befpoke goods of a merchant, pawn fomething Cite of
in fecurity for the payment of the purchafe-money, or having fold
lilver to a banker, receive a pledge in fecurity for the price, or i f a lm or s,rf '
merchant give a pledge to a perfon who has befpoke goods from him,
as a fecurity for his delivery of them,— the contrail is valid. Ziffer
has faid that the contrail, in thefe inftances, is not valid, inafmuch
as the objeit of the pawn in fuch cafes is that it may be a fecurity for
the'difcharge of the feveral claims, namely, the purchafo-money of
thé goods belpoken, the value o f the lilver fold to the banker, or
the goods belpoken,— which is not allowable, becaufe an exchange is
here induced of things not delivered for things o f a different Ipecies;
and an exchange of fuch things, previous to feizin being obtained of
them, is unlawful. T h e argument of our doflors is, that as a parity
of fpecies betwixt the things which were to be delivered, and the
pledge, holds good with refpedt to their worth, by means of their worth
the engagement may be fulfilled ;— and the pofleflion of a pledge induces
a refponfibility in regard to its worth, although with refpect to
its. fubftance it be conlidered merely as a tru f.— If, alfo, the pledge
oppofed to the price of the article befpoke, or the value of the lilver
fold, be deftroyed at the time of making the contrail, (that is, before
the company in whofe prefence it was made breaks up,) the bargain
is accomplilhed, and the pawnee or feller, is reckoned to have received
his right; becaufe by the deftruilion o f the pawn he is virtually con-
fidered to have received the price of his lilver, or the amount o f
money which was to have been advanced.— If, on the contrary, the
buyer and feller fhould have feparated previous to the deftruilion of
the pledge, the bargain becomes invalid; becaufe the receipt of the
Von. IV . E e price