right of the pawnee. If the pawnee pay the atonement, a part of the
payment, in proportion to the part [of the Have] he held in truft, is
conlidered as gratuitous, (for this reafon, that if he had not chofen to
pay it, the matter would have reded upon the pawner,) and fuch
being the cafe, he has no claim upon the pawner for an indemnification.—
If, on the contrary, the pawnee refufe to pay the atonement,
and the pawner difcharge the whole, a moiety of it is in that cale
placed to the account of the pawnee;— (that is to fay, is deduced
from his claim;) for as, in all cafes where pledged flaves commit a
crime, the debt of the pawnee is held to be extinguifhed upon the
pawner either making over the (lave, or paying the atonement, it follows
that the pawner, in paying the atonement, does not aft gratuitously.
As, therefore, a moiety of the atonement is due from the
pawnee, if fuch moiety be equal to, or greater than his claim, the
whole of his debt is extinguilhed; or, if it be lefs, a proportionate
part; whilft the Have is detained in pawn in fecurity of the part remaining
due.
The executor Ip a pawner die, his executor is empowered to fell the pledge,
o f a deceafed an(j difcharge the debt, provided he obtain the confent of the pawnee;
pawner may 0 r 1
fell the for as the executor reprefents the pawner, he has confequently the
difcharge^the fame power and privilege as had appertained to him during his life-
debt, with the t'lme_ But if a pawner die without, leaving an executor, it then
pawnee s 1 ^ # .
confent. belongs to the Kazee to appoint a perfon to aft in that capacity; as it
is his duty to conferve the rights of thofe who are themfelves incapable
of maintaining them; which purpofe is fulfilled in the appointment
of an executor, who may difcharge the debts of the deceafed,
and receive payment of his claims upon others.
An executor If an executor pawn part of the effefts of the defunft to one
effeftsof'the ° f h*s creditors, it is illegal, and the other creditors may compel'
defunft to him to revoke the pawn;— for an executor, not having the power
Chap. IV. P A W N S , 261
of paying fome of the creditors, and of. excepting others, cannot
therefore give pledges to fome and not to others; as a pledge is held
to be the fame, in effeft, with an'aftual payment. If, therefore,
the executor fhould, in the mean time, difcharge the claims of the
other creditors, the pawn which he before made is valid, fince in
fatisfying them he removes the bar to its legality. But if the defunft'
fhould leave only one debt againft him, in that cafe the executor
isjuftified in pawning part of the effefts in fecurity of it; for,
fince he has a power of giving part of the effefts in payment of
the debts of the deceafed, he may confequently depofit part of them
in pledge; and if, afterwards, he fell the pledge as a means of
difchar<nng the debt, it is lawful, becaufe the fale of the* effefts
of the defunft with a purpofe' to pay off his debts being lawful
when they are not pawned, it is confequently fo likewife when they
are pawned.
If an executor take a pawn in fecurity of a debt due to the defunft,
it is lawful; becaufe the feizin'of a pawn is the fame as a receipt
of payment; and it is the duty of an executor to receive payment
of the debts of the deceafed. (A more particular explanation of the
powers of an executor, with refpeft to pawns, fhall be given in treating
of EjXecutorjhips.')
any particular
creditor,
unlefs there
be only one.
He may receive
pledges
in fecurity
for debts
owing to the
defund.
S E C T I O N .