1 Story on Bailm. § 308; 2 Kent, Cqmm. 581, 582; 2 Story on Eq. Jur. § 1031-1035; Pothier, Pand. Lib. 20, tit. 5, n. 1, 2, 3, 18, 19; Kemp v. Westbrook, 1 Ves. 278; Cortelyou v. Lansing, 2 Caines, Cas. 200; Garlick v. James, 12 Jobns. 146; Patchin v. Pierce, 12 Wend. 61; Hart v. Ten Eyck, 2 Johns. Ch. 62, 513. The common law of England, in the time of Glanville, required process, before sale; but the rule is different now. Glan-ville, Lib. 10, ch. 1, 6; 1 Reeves, Hist. Eng. Law, 161, 162; 2 Bell, Comm. § 701, 4th ed.; ib. p. 20, 21, 22.

2 South Sea Co. v. Duncomb, 2 Str. 919; 1 Domat, B. 3, tit. 1, § 1, art. 31; Stevens v. Bell, 6 Mass. 339; Bac. Abr. Bailment, B.; Rateliff v. Davis, Yelv. 178: Pothier de Nantissement, n. 43; Bank of Rutland v. Woodruff, 34 Vt. 89; Butterworth v. Kennedy, 5 Bosw. 143; Robinson v. Hurley, 11 Iowa, 410.

3 Johnson v. Stear, 15 C. B. (n. s.) 330. See Kidney v. Persons, 41 Vt. 386 (1868).

4 Donald v. Suckling, Law R. 1 Q. B. 585 (1866); Halliday v. Holgate, Law R. 3 Exch. 299 (1868).

5 Johnson v. Stear, 15 C. B. (n. s.) 330. And see Baltimore Mar. Ins. Co. v. Dalrymple, 25 Md. 269; Bulkeley v. Welch, 31 Conn. 339.

6 Wheeler v. Newbould, 16 N. Y. 392; Washburn v. Pond, 2 Allen, 474; Brass v. Worth, 40 Barb. 648; Brown v. Ward, 3 Duer, 660; Rankin v. McCullough, 12 Barb. 103.

7 Wheeler v. Newbould, supra; Markham v. Jaudon, 41 N. Y. 235.

8 Millikin v. Dehon, 10 Bosw. 325; Brass v. Worth, 40 Barb. 648; Davis

§ 877. If the use of a pawn be either necessary to its preservation, or beneficial, the pawnee may use it. Thus, if a pointer be pledged, it may be used for sporting, so as to be kept in good training. So, also, if the keeping of the pledge be an expense to the pledgee, he may indemnify himself therefor by a reasonable use thereof; as, if a horse be pledged, he is privileged to ride or drive him moderately. But if the use be absolutely injurious, he must not use it. So, also, if the use be dangerous, he must take the risk, if he use it. Thus, if jewels be pawned, and worn in a public place, and be stolen there, the pawnee must bear the loss.1

§ 878. The measure of diligence which a pawnee is bound to observe, in keeping a pawn, is ordinary diligence; and he is only liable for ordinary neglect; because the bailment is for the mutual benefit of the parties. What constitutes ordinary diligence is a matter of evidence, and depends upon the circumstances of each particular case. Even proof of theft creates no presumption of negligence.2 Demand and refusal will, however, be evidence of a conversion, which must be rebutted by positive proof.3 If an action be brought against a pawnee for negligence, the onus probandi is upon the party bringing the action.4 v. Funk, 39 Penn. St. 243; Stevens v. Hurlbut Bank, 31 Conn. 146; Pigot v. Cubley, 15 C. B. (n. s.) 702; Brightman v. Reeves, 21 Tex. 70; Mauge v. Heringhi, 26 Cal. 577; McNeil v. Tenth Nat. Bank, 55 Barb. 59; 46 N. Y. 325 (1871).

1 Story on Bailm. § 329-331; Jones on Bailm. 81; Coggs v. Bernard, 2 Ld. Raym. 909; Mores v. Conham, Owen, 123; s. c. 2 Salk. 522; Thompson v. Patrick, 4 Watts, 414; 2 Kent, Comm. 578; Bagshawe v. Goward, Cro. Jac. 147; 8. c. Noy, 119; Duncomb v. Reeve, Cro. Eliz. 783; 1 Roll. Abr. 673, pl. 8; 9 Vin. Abr. Distress, P. pl. 8; Buller, N. P. 72.

2Coggs v. Bernard, 2 Ld. Raym. 909, 916; Bracton, 99 b; Jones on Bailm. 15, 21, 23, 75; Story on Bailm. § 38, 39,332, 338, 380; 2 Kent, Comm. lect. 40, p. 560, 581; Finucane v. Small, 1 Esp. 315; Clarke v. Earnshaw, Gow, 30. For a full discussion of the liability of the pawnee, in cases of theft, see Story on Bailm. § 332, et seq.; Butt v. Great Western Railway Co., 11 C. B. 140; 7 Eng. Law & Eq. 448.

3 Isaack v. Clark, 2 Bulst. 306; Beardslee v. Richardson, 11 Wend. 25; Doorman v. Jenkins, 2 Ad. & El. 256; Tompkins v. Saltmarsh, 14 S. & R. 275; Story on Bailm. § 339.

4 Cooper v. Barton, 3 Camp. 5; Harris v. Packwood, 3 Taunt. 264*,

§ 879. A pawnee is liable for all injuries and losses resulting from his negligence or misconduct; and if he refuse to redeliver a pawn, upon tender of payment of the full debt, he renders himself responsible for all future losses; unless, perhaps, where the loss must inevitably have happened without his default.1 So, also, a pawnee is bound to render a true account of all the income, profits, and advantages received by him from the pawn.2

§ 880. This contract of bailment may be extinguished: 1st. By full payment of the debt, and the incidental engagements;3 or by any other mode of satisfaction; as by receiving other goods in payment or discharge. 2d. By taking a higher or a different security (as a bond, or obligation, or a promissory note), without any agreement that the pledge shall be also retained. 3d. By the extinguishment of the debt, by operation of law; as where the pledgee obtains judgment against the pledgor, on a suit for the debt;4 or where the debt is barred by prescription. 4th. By the destruction of the pledge. 5th. By any act which amounts to a release or waiver of the pledge.6

Marsh v. Home, 5 B. & C. 322; Story on Baihn. § 339; Runyan v. Caldwell, 7 Humph. 134; Browne v. Johnson, 29 Tex. 40; Foote v. Storrs, 2 Barb. 326; Harrington v. Snyder, 3 Barb. 380; McCarthy v. Wolfe, 40 Mo. 520 (1867); Cross v. Brown, 41 N. H. 283; 5 Am. Law Rev. 221 (1871). But see Platt v. Hibbard, 7 Cow. 497; Burnell v. New York Cent. R.Co., 45 N. Y. 184 (1871).

1 Coggs v. Bernard, 2 Ld. Raym. 909, 916, 917; Anon., 2 Salk. 522; Jones on Bailm. 70, 71, 79, 80; Bac. Abr. Bailment, B.; ib. Trover, C.; Ratcliff v. Davis, Yelv. 178; Davis v. Garrett, 6 Bing. 716; Bell v. Reed, 4 Binn. 127; 3 Kent, Coram. 206; Story on Bailm. § 341, 413 a, 413 b; Commercial Bank v. Martin, 1 La. An. 344. See also, on the liability of a pledgee, the cases of Goodall v. Richardson, 14 N. H. 567; and Noland v. Clark, 10 B. Monr. 239.

2 Houton v. Holliday, 1 Car. Law Repos. 87; Story on Bailm. § 343; Geron v. Geron, 15 Ala. 562.

3 See Merrifield v. Baker, 9 Allen, 29; Bank of Rutland v. Woodruff, 84 Vt. 89.

4 But quaere, whether such is necessarily the effect of merely recovering judgment for the debt.

5 Story on Bailm. § 359-365; 1 Domat, B. 3, tit. 1, § 7, art. 4; Pothier, Pand. Lib. 20, tit. 6, § 4,1. 17, 18; Dig. Lib. 20, tit. 6, 1. 6; Ayliffe, Pand.

B. 4, tit. 18, p. 536, 537; Kemp v. Westbrook, 1 Ves. 278; Gage v. Bulkeley, Ridgw. 283; Ratcliff v. Davis, Yelv. 178,179; 1 Powell onMort. by Coventry and Rand, 401, and note; Higgins v. Scott, 2 B. & Ad. 413; Macomber v. Parker, 14 Pick. 497; Homes v. Crane, 2 Pick. 607; Runyan v. Mersereau, 11 Johns. 534; Reeves v. Capper, 5 Bing. N. C. 136; Ryall v. Rolle, 1 Atk. 165.