§ 868. A pawn or pledge is the deposit of an article as security for debt. It is distinguished from a mortgage by two incidents. First, a pledge only confers a special property upon the pledgee; while by a mortgage the whole legal title passes conditionally to the mortgagee. Secondly, the right of the pledgee depends entirely upon possession; but at common law possession is not necessary to create or support a mortgage.1 A pledge must be given as a security for some debt or engagement, but not necessarily for that of the pledgor; for, by agreement between the parties, it may be given for any species of debt, or engagement, due from any person, even for a debt which could not be enforced at law;2 and what the actual agreement is, may be inferred from circumstances. So, also, unless there be a special agreement to the contrary, it will be considered as a security for the entire debt, and therefore cannot be redeemed by a partial payment thereof.3
§ 869. Possession and delivery are necessary to consummate a pledge, and nothing, therefore, which is not in existence, and nothing of which the possession cannot immediately be given, can be pledged.1 But if a pledgor have a limited title to any thing, he may pledge it to the extent of his title.2 So, also, money, choses in action, stocks,3 negotiable instruments, coupon bonds,4 mortgages,6 and any personal property may be pledged.6 This rule is restricted, however, to such negotiable securities as pass for money; but it does not apply to negotiable securities for goods, such as bills of lading. So, also, the holder of negotiable securities belonging to another person, and held by him as trustee,7 cannot pledge them on his own account.8 So, also, a factor, having a lien on goods for advances, or for a general balance, has no right at common law to pledge them on his own account.9 It is not necessary,
1 Ward v. Sumner, 5 Pick. 59, 60; Homes v. Crane, 2 Pick. 607; Cortelyou v. Lansing, 2 Caines, Cas. 200, 202; Brown v. Bement, 8 Johns. 96; Barrow v. Paxton, 5 Johns. 258; Peters v. Ballistier, 3 Pick. 495; Langdon v. Buel, 9 Wend. 80; Ferguson v. Lee, 9 Wend. 258; Patchin v. Pierce, 12 Wend. 61; Bonsey v. Amee, 8 Pick. 236; Eastman v. Avery, 23 Me. 248; Brownell v. Hawkins, 4 Barb. 491.
2 King v. Green, 6 Allen, 139.
3 Badlam v. Tucker, 1 Pick. 398; Holbrook v. Baker, 5 Greenl. 309; D'Wolf v. Harris, 4 Mason, 515; Conard v. Atlantic Ins. Co., 1 Peters, 448; U. S. v. Hooe, 3 Cranch, 73; Shirras v. Caig, 7 Cranch, 34; Stevens v. Bell, 6 Mass. 339; Pothier de Nantissement, n. 12; Gilb. Eq. 104; Story on Bailm. § 300, 301.
1 Macomber v. Parker, 14 Pick. 497; Story on Bailm. § 290, 294; Cortelyou v. Lansing, 2 Caines, Cas. 200, 202. See Smith p. Atkins, 18 Vt. 461; Smithurst v. Edmunds, 1 McCarter, 408.
2 Hoare v. Parker, 2 T. R. 376; 4 Camp. 121; M'Combie v. Davies, 7 East, 5; 1 Dane, Abr. ch. 17, art. 4, § 7; 1 Domat, B. 3, tit. 1, § 3, art. 25.
3 Wilson v. Little, 1 Sandf. 351; 2 Comst. 443; Hasbrouck v. Vander-voort, 4 Sandf. 74; Van Blarcom v. Broadway Bank, 9 Bosw. 532.
4 Morris Canal Co. v. Fisher, 1 Stockt. 667.
5 Campbell v. Parker, 9 Bosw. 322.
6 Kemp v. Westbrook, 1 Ves. 278; Lockwood v. Ewer, 9 Mod. 278; 2 Atk. 303; M'Lean v. Walker, 10 Johns. 471, 475; Roberts v. Wyatt, 2 Taunt. 268; Jarvis v. Rogers, 13 Mass. 105; 15 Mass. 389; Bowman v. Wood, 15 Mass. 534; Cortelyou v. Lansing, 2 Caines, Cas. 200; 1 Dane, Abr. ch. 17, art. 4, § 11; Garlick v. James, 12 Johns. 146; Story on Bailm. §290.
7 See the late important case of Shaw v. Spencer, 100 Mass. 382 (1868).
8 Abbott on Shipping, pt. 4, ch. 9, § 10; Story on Bailm. § 296, 323; Sumner v. Hamlet, 12 Pick. 76; 2 Kent, Comm. 627, and note a; Story on Agency, § 113, and note, § 225; Treuttel v. Barandon, 8 Taunt. 100; Sigourney v. Lloyd, 8 B. & C. 622; 5 Bing. 525; Newsom v. Thornton, 6 East, 17; Martini v. Coles, 1 M. & S. 140; Shipley v. Kymer, 1 M. & S. 484; Pickering v. Busk, 15 East, 38; Queiroz v. Trueman, 3 B. & C. 842.
9 2 Kent, Comm. 626-628; Jarvis v. Rogers, 15 Mass. 389; Van Amringe v. Peabody, 1 Mason, 440; Urquhart v. M'lver, 4 Johns. 103; Daubigny v. Duval, 5 T. R. 604; Newsom v. Thornton, 6 East, 17; M'Combie v. Davies, 7 East, 5; Martini v. Coles, 1 M. & S. 140; Queiroz v. Trueman, 3 B. & C. 342; Story on Bailm. § 825; Shipley v. Kymer, 1 M. & S. 484; Pickering v. Busk, 15 East, 44; Solly v. Rathbone, 2 M. & S. 298; Story on Agency, § 113, and note, § 225, 227; Kinder v. Shaw, 2 Mass. 398; Odiorne v. Maxcy, 13 Mass. 178. See Johnson v. Stear, 15 however, that the pledge should be the property of the pledgor, if it be pledged with the consent of the owner; and even if it be pledged without his consent, the owner can alone take advantage of the fact.1
§ 870. In the first place, delivery is absolutely necessary to complete the bailment; for until the pledge is delivered, the contract is only executory. Where, however, actual delivery would be difficult or impossible, a constructive delivery will be sufficient.2 Thus, goods stored in a warehouse may be pledged by a delivery of the key; or goods at sea by the transfer of a bill of lading.3 In the next place, a pledgee acquires a temporary right to the pledge, and is entitled to retain exclusive possession thereof against all persons whatsoever.4 And in a suit by the pledgee against a stranger, he can recover the full value of the goods, and not merely the amount of his lien on it; as he would be answerable over to the pledgor for the balance.5 He may even sue the owner therefor, if it be wrongfully taken from him by the owner.1 So, also, as the pledge depends upon possession, if the pledgee voluntarily surrender the possession thereof, or lose it, he loses his title thereto,2 unless he surrender it temporarily, and upon an agreement that it shall be returned to him; in which case, he may recover it from any person holding it, even though it be the owner. Thus, if he redeliver it to the pledgor as his special bailee or agent, he may recover it from him.3 But it has been said that it cannot be taken from his possession upon an execution, in an action against the pledgor.4 The authorities, however, differ on this point.6