The class of liens arising by contract, though a very large one, and including transactions for security or indemnity in almost every branch of business, is very well represented by the common occurrence of a pawn or pledge. This is a lien created by the owner of personal property, by the mere delivery of it to another, upon an express or implied understanding that it shall be retained as security for an existing or future debt. This branch of the law of lien will, in this chapter, be confined to a brief view of the rights and duties of the parties to the pledge, as the general law of pledge is fully stated in the chapter on Bailment

* A pledgee's lien being one by agreement, may be either particular or general, according to the terms or circumstances of the express or implied contract upon which it is founded, (a) The possession necessary in order to the enforcement of this lien, may be either actual or constructive; and for this purpose a delivery to a servant of the pledgee is effective, (b) Unless there be an express stipulation to the contrary, the pledgee has a right to sell the property upon the default of the pledgor to pay. If he sell, he may be held to account for the surplus to the pledgor, and will hold him for the deficiency, (c) The pledgee's right to sell is,

(a) Hammonds v. Barclay, 2 East, 227; Ex parte Ockenden, 1 Atk. 235; Demain-burjr v. Metcalf, Prec. in Ch. 419, 2 Vern. 691.

(b) Falkner v. Case, 1 Bro. C. C. 125; Reeves v. Capper, 5 Bing N. C. 136.

(c) Walter v. Smith, 5 B. & Ald. 439. The plaintiff had pledged a gold watch however, usually regulated by statute. If a pledgor, as he may do, subsequently assign his property in the pledge, the assignee will have, it is said, the same rights as the pledgor, both at law and in equity. In this respect a pledge differs essentially from a mortgage; (d) for an assignee of an equity of redemption in a thing mortgaged, has no such rights at common law. (e) As the property pledged is merely a collateral security for the payment of a claim, and not a liquidation of it, the pledgee may sue at law for the recovery of his demand, without prejudice to his lien. (f)

1 A person, pat in possession of a ship and cargo by the captain, after the ship has gone ashore, who does work and expends money in discharging and bringing the cargo to a place of safety, where he takes possession of it, has a lien thereon for his charges, analogous to general average or salvage. Hingston v. Wendt, 1 Q. B. D. 367. That the right of a ship's husband to be repaid out of the freight for advances made on account of the ship is a right of lien or retainer, and that his removal before he is in a position to receive the freight will prevent an assignee of his interest therein from maintaining a claim to it against the owners, see Beynon v. Godden. 3 Ex. D. 263. - K.

A pledge of partnership property by a partner, without fraud * or collusion on the part of the pledgee, will give a valid lien as against the other partners. This rule applies as well to particular partnership operations as to general partnership; nor will the lien be restricted to the particular share or interest to which the pledgor is entitled, (g) and trinkets, with the defendant, a pawnbroker, at Bristol in England, and did not require them to be returned within the statute time of a year and a day, after which goods may, by the statute, be deemed forfeited, and the pawnbroker is authorized to sell. After the time had lapsed, the goods being still in possession of the defendant, the plaintiff tendered the full sum due on the pledge and demanded his property. The defendant then refused to return the articles, because the year had expired, and subsequently sold them at auction, the plaintiff becoming the purchaser. The plaintiff sued the pawnbroker in trover, and the question came before the Court of King's Bench, whether by the expiration of the time, the pawner had lost all right to his property. The court decided, that, as the same statute which declared that goods not redeemed in time should be deemed forfeited, also recognized that the surplus arising from a sale of the property belonged to the pawner, it could not be considered that he absolutely lost all right by suffering the time of redemption to expire; and that, as the pawnbroker could only retain, from the proceeds of the sale, the full amount of his claim, if that amount were tendered to him before the sale, he would get just what the law intended he should have, and therefore could not refuse it and insist upon selling. Judgment was accordingly given for the plaintiff. Kemp v. Westbrook, 1 Ves. 878; Pothenier v. Dawson, Holt, 383; Lockwood v. Ewer, 9 Mod. 275; S. Sea Co. v. Duncomb, 2 Strange, 919. And see 1 Smith, Ld. Cas. 100.

(d) Kemp v. Westbrook, 1 Ves. 278.

(e) 1 Smith's Ld. Cases, 100.

(f) Bac. Abg. Bailm. B.; Anon. 12 Mod. 564, case 951.

(g) Reid v. Hollingshead, 4 B. & C. 867, D. & R. 444. The plaintiffs, merchants in London, directed B, a broker in Liverpool, to purchase 1,000 bales of cotton, B to be allowed one-third interest therein, acting in the business free of commission. These terms were assented to by B, and the cotton was purchased in his own name, stored in rooms rented by him, and paid for by drafts drawn upon the plaintiffs, which were duly accepted and paid. All these transactions were known and approved by the plaintiffs, and in the correspondence between them and B, the purchase was in all cases spoken of by both parties, as a joint purchase and speculation. Policies of insurance were procured by B, and transmitted to the plaintiffs When it became advisable to sell, B disposed of various lots, and remitted the proceeds to the plaintiffs. One lot of 200 bales he stored with the defendants, who were cotton-hrokers, for them to sell, and subsequently received large advances from them upon pledge of the cotton stored with them; but this transaction was effected without the knowledge of the plaintiffs. Nor had the defendants any knowledge that any party besides B. was interested in the cotton. B subsequently became bankrupt, owing the plaintiffs largely, and indebted to the defendants in a greater amount than the value of the 200 bales stored with and pledged to them. The plaintiffs sued the defendants in trover to recover two-thirds of these 200 bales. The plaintiffs contended that B. had no right to pledge the cotton as he had no interest therein, but only in the profit and loss to arise from

A pledgee acquires no lien, if the transaction takes place within the time limited by the bankrupt laws for rendering invalid the acts of one who subsequently becomes a bankrupt, in the disposition of his goods, (h)

If property be pledged to secure repayment of an usurious loan, the lien will not cover the part of the debt that is usurious. (i)

A pledgee acquires no lien upon goods pledged without authority of the owner, though the want of title in the pledgor be unknown to him when he receives the pledge. (j ) But as to pledges of banknotes, negotiable securities indorsed, and other representatives of money, the pledgee who takes them in good faith will acquire a lien, whether the title be in the pledgor * or not (k) And goods obtained by false pretences are subject to the pledgee's lien, because the property is in the pledgor. (l)

The pledgee may assign his interest in the property to a third person, with a delivery of the property itself, and the assignee can hold it for the debt so assigned, (m) And in a case where a pledgee had pledged the goods for a larger sum than was owed to him, the time for redemption by the owner having expired, a court of equity would not decree a restoration of the property, by the second pledgee, to the owner, until the latter paid him the full the sale. The defendants, on the contrary, contended that he was a partner in the operation, and that his interest covered the property as well as the profit and loss. The Court of King's Bench held, that the transactions between B and the plaintiffs made him a partner in interest in the goods, and that a pledge of the whole made by him, without fraud or collusion on the part of the pawnee, gave to the latter a right to hold the goods against the plaintiffs. Judgment was accordingly given for the defendants. Raba v. Rylaud, 1 Gow, N. P. C. 132; Tupper v. Haythorn, 1 Gow, N. P. C. 135.

(h) Wilson v. Balfour, 4 Camp. 579.

(i) Astley v. Reynolds, 2 Str. 915; Fitzroy v. Gwillim,l T. R. 153.

(j) Daubigny v. Duval, 5 T. R. 604; Packer v. Gillies, cited 2 Camp. 336 n.

(k) Anon. 1 Salk. 126, case 5; Miller v. Race, 1 Burr. 452; Solomons v. Bk. of Eng. 13 East, 135, n. (a); Collins v. Martin, 1 B. & P. 648; Miller v. Boykin, 70 Ala. 469; Moris v. Preston, 93 111. 215; Miller v. Pollock, 99 Pa. 202.

(l) Parker v. Patrick, 5 T. R. 175. This was an action of trover, and it appeared that the goods in question had been obtained from the defendant by false pretences, and afterwards pawned by the obtainer to the plaintiff for a valuable consideration, without notice of the fraud. The pawner had been convicted of the fraud by the defendant, on which the latter got possession of the goods again, and this action was brought by the plaintiff, the pawnbroker, to recover them from the defendant. The defendant's counsel pressed for a nonsuit, contending that the case should be considered the same as if the goods had been feloniously stolen from the defendant; and that the plaintiff, deriving title through a fraud, though himself innocent of it, was not entitled to recover against the defendant, the true owner. But the Court of King's Bench held, that this case was distinguishable from a felony; for there it was by positive statute that the owner, in case he prosecutes the offender to a conviction, is entitled to restitution; and that the statute did not extend to this case where the goods were obtained from the defendant by fraud. Judgment was therefore given for the plaintiff. And nee Kingsford v. Merry, 1 Hurl. & Nor. 503, reversing same case in 11 Exch. 577; Mowrey v. Walsh, 8 Cow. 238; Caldwell v. Bartlett, 3 Duer, 341; Wood v. Yeatman. 15 B. Mon. 270.

(m) Kemp v. Westbrook, 1 Ves. 278; Walter v. Smith, 5 B. & Ald 439.

amount of his claim against the second pledgor, (n) It will be observed, that in this case the owner had no remedy at law, the time of legal redemption having elapsed before the first pledgee parted with the goods, and that the decree in equity was framed to prevent injury to an innocent third party.

Upon tender of the amount by the pledgee, the lien is immediately divested, and trover may be maintained by the pledgor if the pledgee refuses to restore the property. (o)