Cafe o f a
pawner committing
one
Have in pawn
for another.
The pawnee
is not refpon-
iible for the
pledge after
and that which the child bears on the day of redemption;— and fince
the {lave was attached folely to the child, the (hare of the child mud
therefore be proportionably divided between it and the flaVe, agreeably
to their refpedtive values, in order that if either of them lhould
die he may be charged for accordingly. If, on the contrary, the
pawner attach the Have to the mother, (laying to the pawnee, “ I
“ have placed him with her in addition to the pledge,” ) the debt
mull: in that cafe be proportionably oppofed to the mother and the
Have, according to the value which they feverally bore at the time of
feizin; and from the fum oppofed to the mother a proportionate part
muft be allotted to the child; for the pawner, in having placed the
flave with the mother, joined him (as it were) to the original matter
of the agreement; whence the child is included in tthe proportion of
the mother only.
If a perlon pawn a Have valued at one thoufand dirms in fecurity
of a debt of the fame amount, and afterwards give the pawnee another
Have, likewile of the fame value, to be detained in place of the former,
in that cafe the firft Have is conlidered as being in pawn until fuch
time as the pawnee reftorehim to the pawner in the way of annulment,
the fecond flave being merely a depofit in his hands until he be regularly
rendered a fubftitute for the other; for the firft flave was included
in the refponfibility of the pawnee only becaufe of ills being
poffefled in fecurity o f debt; and as both the feizin and the debt ftill
exift, the flave therefore continues a fubjedb of refponfibility until the
feizin be formally voided; and fuch being the cafe, the pawnee is not
liable for the fecond flave, as the parties intend one of them only to be
included in the pawnee’s refponfibility:— but upon the pawnee reftor-
ing the firft flave to the pawner, he becomes refponfible for the fecond.
*
If the pawnee acquit the pawner of the debt, or beftow it on him
in gift, and the pledge be afterwards deftroyed in his [the pawnee’s]
pofleffion, he is not refponfible for it, according to our doctors, pro-
1 5 ceeding
ceeding upon a favourable conftrudtion of the l a w :— contrary to the
opinion of Ziffer. T h e reafon6 for a favourable conftru&ion of the
l a w in this particular are twofold.— F i r s t , a pledge is infured on
two conditions;— one, that it be adtually poffefled by the pawnee;
and another, that it be oppofed to a debt either due or promifed. Now
compenfation for a pledge in the cafe of a debt then due, is made in
this manner,— that if the pawn be loft in the hands of the pawnee,
his debt is extinguiffied, provided the value of the pledge be adequate
to the amount of the debt; whereas cOmpenfation in the cafe of a promifed
debt is made by conftraining the pawnee, in cafe of the decay
of the pledge in his hands, to make good to the pawner the fum he
had promifed;— and in a cafe where the pawnee acquits the pawner
of the debt, or beftows it on him in gift, the fecond condition is wanting,
as no debt exifts in that inftance either due or promifed. Secondly,
one objedl; of a pawner in delivering the pledge to the
pawnee is that, in cafe of its lofs, he may be abfolved from any
further obligation: but where the pawnee acquits the pawner of the
debt, and the pawn is afterwards loft in his hands, the defire of the
pawner being accomplifhed, the. pawnee is not therefore liable for i t ;
(unlefs, however, the pawnee, having remitted the debt, refufe to
reftore the pawn, and prevent the pawner from refuming i t ; for in that
cafe, if the pledge be loft, he is refponfible for the value, fince by
fuch obftru&ion he becomes an ufurper, as he no longer poflefles a
power of obftruftion.)— In the fapne manner, i f a woman take a
pledge from her hulband in fecurity of her ftipulated dower, and afterwards
exempt him from the payment of it, or apoftatize from the
faith before confummation, and the pledge be then deftroyed in her
hands, {he is not refponfible for it, as the dower (like the debt) was
remitted.
If a pawnee receive payment of his debt, either from the pawner
or from an unconcerned perfon, in a gratuitous manner, and the
pledge be afterwards deftroyed in his pofleffion, his debt is in confe-
M m 2 quence
havifig a c quitted
the
pawner ofhis
debt.
I f the pledge
be deftroyed
with him after
he has received
pay«