I f the pledge
be fold by
commiftion
from the truftee,
the pur-
chafe-money
i s fubftituted
in place o f it.
P A W N S: B ook XLVlIl.
m ftiort, hold in this inftanqe, as in the cafe of an agent for the ad-
juftment of a cauie of difpute created by the defendant at the in fiance
o f the plaintiff; for if the defendant abfcond, and the agent refufe to
fettle the caufe, he is, compellable thereunto by the Kdzee, for the
fecond reafon above-mentioned, that the right of the plaintiff would
elfe be deftroyed. (It is otherwife with refpect to a mere agent for
/a le ; for i f he refufe to execute the fale, he cannot be compelled
thereto; as his conjlituent may ftill fell the article, whence his ri°ht
is not deftroyed.) What is here advanced proceeds on the fuppofition
of the agency being included in the contrad of pawn; for if it have
not been ftipulated until after the execution of the contrad, there is
in that cafe a differencenf opinion; fome aflèrting that the agent cannot
be compelled to execute the fale, whilft others maintain that he
may be compelled. O f thefe the compiler of the Hedaya remarks that
the laft is the better opinion. Aboo Toofaf has laid that the agency is
equally binding in both cafes, (that is, when included in the contrad,
and alfo when made pofterior thereto.) And the Jama Sagheer and
Mabfoot tend greatly to corroborate this opinion; for in treating of this
fpecies of agency they have fuppofed it alfilate, and not difcriminated
between that included in the contract of pawn and that agreed upon
pofterior thereto.
W hen the agent of a truftee in whofe hands a pledge has been
depofited fells it, it is no longer in pawn, and the purchafe-money
Hands in its place, (that is to fay, is, as it were, in pawn J although
the agent may not yet have received it, as being the fubftitute for a
thing which was before in his pofTeflion. Hence, if the purchafe-
money fhould be loft, by the purchafer (for inftance) dying infolvent
without having difcharged it, the lofs falls upon the pawnee; becaufe
the contrad of pawn ftill continues in force with refped to the pur-
ehafe-money, fince that ftands in the place o f the thing fold, namely,
the pledge. In the fame manner, where a pawned Have is (lain, and
the murderer accounts for his value, the contrad ftill continues in
force,
Chap. III. P A W N S . *33
force, as the owner of the flave is entitled to the value in virtue of his
property, notwithftanding fuch value be paid in atonement fo r blood.
The fame rule alfo holds where a flave, having killed another pawned
flave, is commuted for the one fo killed,— the murderer being in that
cafe fubftituted for the murdered.
If a truftee, having been appointed agent for the fale of the
pledge, fhould fell it, and deliver the pricé to the, pawnee by way of
I payment, and another afterwards prove' a property in the pledge, and
I he accordingly pay that other a compenfation for its value, it then
I remains in his option, either to take the value from the pawner, or
I the amount of the purchafe-money from the pawnee: but he is not
I permitted to take more from the pawnee than the purchafe-money.—
I The compiler of the Hedaya remarks that this cafe may occur under
I two different circumftances or predicaments:— I. where the pledgers
I deftroyed after thé fale ; and II. where it remains whole and com*
I plete.— In the former o f thefe, the owner of the pledge is at liberty
I either to take a compenfation for the, value from the pawner, who is
I an ufurper of his .right, or from the truftee, who has invaded it, in
I having fold his property and delivered, it to another. Should he,
I therefore, take it from the pawner, the fale of the truftee becomes
I valid, as does alfp the pawnee’ s feizin.of the price in fat is faction for
I his debt; becanfe,, as the pawner, by making compenfation, becomes
I proprietor of the pledge and effaces the ufurpation, it then appears
I that he had authorized the truftee to fell that which wasi his. own-—
If, on the contrary, he take the compenfation from the tru/lei?, he
[the truftee] may, i f he chufe, have recourfe to the pawner; that is
to fay,, he may take from him the value of the pledge; for, as being
his agent, and the manager of his affairs, he is consequently entitled
to an indemnification for whatever lofs he may have unavoidably fuf-
tained in the execution of his comrariflion. And in this cafe, alfo, the
fale of the pledge is valid, as well as the pawnee’s fibizin o f the purchafe
money in fatisfaclion for his debt,— whence, in this cafe, he [the
V ol. IV. H h pawnee]
I f the truftee,
having fold
the pledge
and paid o ff
the pawnee,
be expofed to
any fubfe-
quent lofs, he
may reim-
burfe himfelf
from either
party: