234
but i f he was
commiffioned
by the pawner
after the coni*
tra il, he mull
recur to him
P A W N S. B o o k XLVIir.
pawnee] cannot urge any future, claim againft the pawner on the fcore
o f his debt.— Or, if the truftee chufe, he may have recourfe to the
pawnee; that is to fay, he may refume from him the purchafe-
money which he had unjuftly received from him; unjujily, becaufe it
proved in the end to be the truftee’s property, by his having afterwards
made good the lofs to the proprietor. For when he gave it to
the pawnee, he fuppofed it to have been the property of the pawner;
but he may not, perhaps, when it proves his own property, be in,
dined to confirm the transfer, and he is therefore allowed to refume
it. As, however, the refumption of the purchafe-money from the
pawnee deprives him of a difcharge of his claim, which the feizin of
it was' intended to effect, he therefore remains at liberty to demand
payment ffom the pawner in this inftance. In the latter of the above
circumftances, on the contrary, (where the pledge remains whole
and complete after the fale,) it i f incumbent on the owner of the
pledge to refume it from the purchafer, as he poflefles the fubftance
of his property; and the purchafer is entitled to a restitution o f the
purchafe-money from the truftee, becaufe o f his being the feller-,
after which the truftee may, at his option, receive an indemnification
either from the pawner or pawnee,— from the former, becaufe he oc-
cafioned him to enter into the agreement, from which he is confe-
quently bound to releafe him,— and from the latter, becaufe, when
the thing fold was proved to belong to another, the money obtained
in lieu thereof is no longer termed purchafe-money, and the pawnee
having received it only as fuch, his feizin is no longer of effedt. If,
therefore, he take the value from the pawner, the pawnee's feizin of
the price is rendered valid;— whereas, i f he refume the purchafe-
money from the pawnee, his feizin being thereby deftroyed, his
former right (namely, the claim againft the pawnee) exifts as before.
All that is here advanced proceeds on the fuppofition of the agency
having been included as an article in the contract of pawn; for if the
pawner appoint the truftee his agent for the fale o f the pledge after the
contract, he [the agent] is in this cafe to indemnify himfelf for any
lofs
C h a p . III. P A W N S. 235
lofs he may fuftain, in confequence of felling the pledge, from the
pawner, not from the pawnee, notwithftanding he may have made
over to the pawnee the price he had received for the pledge, fince
with this agency the pawnee has no concern, infomuch that the
pawner may reicind the agency without confulting him.
If a pledged flave die in the pofleflion of the pawnee; and it be
afterwards difcovered that he was the property of another, hot of the
pawner, it remains with the proprietor to demand a compenfation
from either the pawner or pawnee ; for both are violators of his right,
— the one in having delivered the pledge to another, and the other in
having received it. If, therefore, he take a compenfation from the
pawner, the pawnee, becaufe of the flave 'havingdied in his poflef-
iion, is held to have received payment of his debt; for 'as the pawner
has-obtained a property in the. flave by indemnifying his owner, the
payment of his\ debt is therefore effedted by the flave dyino- in the
pawnee’s hands. If, on the contrary, he take a compenfation from
the pawnee, he [the pawnee] is not only entitled to an indemnifica-
tory fatisfadtion from the pawner, but his claim upon him jftill exifts.
as before:— he is entitled to an indemnification from the pawner, becaufe
of his having deceived him; and his claim of debt exifts as formerly,
becaufe the difcharge effected by the pledge having died in his
poffdfion ceafes to be of force upon his making good the value, whence
his right reverts.
O b j e c t i o n , (by the Kdzee Aboo Khelzim.)— It would appear that
in this cafe the pawnee’ s claim does not exift as before, but that the
death of the flave in his hands eftablifhes a fatisfadtion for i t ; becaufe,
upon the pawner compenfating for the flave’s value, (by the pawnee
recovering fuch value from his as above,) he becomes, in virtue of
fuch compenfation, proprietor of the flave, whence it appears that he,
in fadt, pledged that which was his own, and that the cafe is the
lame as if the proprietor had taken the compenfation from the
H h 2 pawner,
alone for indemnifies
j
tion.
A ftranger
proving his -
right in a
pledged (lave,
who had died
with the
pawnee, may
feek his compenfation
from either
party.