after which
neither o f
them is at
liberty to take
it out o f the
truftee’s
hands:
but the
pawnee is refponfible
in
cafe o f lofs,
unlefs the
truftee have
tranfgrefled,
in which cafe
be is'refpon-
lible.
lpe£t to prefervatwn, (the fubjiance of the pawn being a truji,'} and
with relpedt to worth it is the fame as.that of the pawnee, ':as it fub-
jefts him to refponfibility in cafe of its lofs, a pawn being infured
with regard to its worth; wherefore the truftee ftands in the place of
two parties, the pawner and the pawnee, to ftrengthen the objeft of
both, namely, the contrad of pawn. (With refped to the truftee’s
right of having recqurfe to the pawner, in cafe of the lofs, and lo
forth, as mentioned above, it is admitted folely in confideration of his
being the pawner’s deputy for the confervation of the fubftance of the
pledge, in the manner of any ordinary truftee.)
T h e pawnee is not at liberty to take the pledge from the truftee,
inafmuch as the right of the pawner is ftill connected with it, in this
way, that the pledge is a depofit in the truftee’s hands. Neither is the
pawner at liberty to take it, becatife of the pawnee’s right being con-
ne&ed with it for the purpofe of obtaining payment of his debt.
Neither party, therefore, is at liberty to invalidate the right of the
other.
If the pledge be. deftroyed in the poffeffion of the truftee, the
pawnee is refponfible; for the feizin of the truftee is the fame as that
of the pawnee in regard to.the worth of the pledge; and refponfibility
attaches only on account of worth. If, on the contrary, the truftee
deliver the pavyn either to the pawner or pawnee, he is refponfible;
for this reafon, that he is the pawner's truftee withrefped to th zfub-
ftance o f the pledge, and the pawnee's truftee with refpedt to its
worth; and each of thefe parties ftands as a f ranger towards the other;
and a truftee is rendered refponfible by delivering the objedt of his
truft into the hands o f a ftranger. The truftee, therefore, being in
this cafe refponfible, cannot retain the value by way of the pawn in
his own poffeffion; for as’ he has become indebted for'the value, it
follows that, if he were to retain it byway of the pawn, he becomes
at once the claimant and claimee, and the payer and receiver;.in
which
which is implied an obvious inconfiftency. T h e pawner and pawnee
muft therefore, in this cafe, concur to take the value from the truftee,
and deliver it again to him, or to any other perfon, in place of
the original pawn. If, however, they fhould not concur in fo doing,
either of them may in that cafe refer the matter to the Kdzee, who
may take the value from the truftee, and again deliver it to him, or
to any other, in the place of the original pawn. I f the Kdzee do fo,
and the pawner afterwards difcharge his debt, then, fuppofing that
the refponfibility for the value had attached to the truftee in confe-
quence of his having reftored the pledge to the pawner, the value in
queftion remains fecure to the truftee, as the pawner here appears to
have recovered his pledge, and the pawnee his debt. If, on the contrary,
the refponfibility had attached to the truftee in confequence o f
his having Surrendered the pledge to the pawnee, the pawner, upon
difcharging the debt, is entitled to take from him the value in queftion;
for as", in cale of the exiftence of the pawn, he would immediately
on payment of the debt refume it, he is by confequence at liberty to
take the fubftitute. It is to be obferved, in this cafe, that i f the
truftee have given the pledge to the pawnee in loan or tru f, and it
have been deftroyed without any tranfgreffion on his part, he [the
truftee] is not entitled to take the value from him [the pawnee;]—
whereas, if the pawnee have occafioned th'e lofs, he is fo entitled;
for as the property of the thing has before veiled in him in virtue of
his having compenfated for its lofs, it was of courfe his own property
that he lent; and the borrower is therefore liable for its lofs when oc-
caftoned by himfelf, but not otherwife. If, alfo, the truftee give the
pledge to the pawnee, “ in order that he may preferve it himfelf as a
“ fecurity for his debt,” and it be afterwards deftroyed, he is entitled
to take the value from the pawnee, whether he [the pawnee] were
the occafion o f its lofs or not; for it was not given to him in the nature
of truft or loan, but on terms which implied a liability to make
compenfation.
Is
Rules to be
obferved in
this inftance*