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it was payable at a certain time after the date: but, if the day were laid under a videlicet, it was necessary to allege that the time for payment had elapsed before the commencement of the suit or the exhibiting of the bill: and I know I used always so to aver. We cannot set aside this demurrer as frivolous." [He was then stopped by the Court.]

WILLIAMS, J.-I am of opinion that this rule should be made absolute for a new trial. The declaration in effect describes the bill upon which the action is brought as being a bill which was overdue at the time of the commencement of the suit. The meaning of a plea of non acceptavit is, that the defendant never accepted a bill such as that described in the declaration. At the trial, a bill is produced bearing date at such a time that it could not have been overdue at the time the action was commenced. This would have been a fatal variance before the passing of the Common Law Procedure Act: and it is so still. The declaration could not be amended, consistently with the truth, so as to give the plaintiff a good cause of action. He should therefore have been nonsuited.

WILLES, J.-I am of the same opinion. The plaintiff has obtained that which he is not entitled to. He has not only got a verdict for the amount of the bill of exchange, but also for a large amount of costs in respect of a cause of action which had no existence at the time he commenced his proceedings. The *legislature has undoubtedly [*729 given great facilities to plaintiffs in enforcing their rights on bills of exchange: but I feel no disposition to help a party who sues before the bill is due. The plaintiff was bound to show that the bill was overdue at the time of action brought. He alleges in his declaration that he has such a bill. By his plea, the defendant denies that he accepted such a bill. A similar rule has been applied in the case of a notice of dishonour. In Castrique v. Bernabo, 6 Q. B. 498 (E. C. L. R. vol. 51), in an action against the endorsee of a bill of exchange, issue was joined as to notice of dishonour. It appeared that a letter containing the notice was put into the post on the day on which the action was commenced, and, by the routine of the post, would reach the defendant between four and five in the afternoon of that day. No further evidence was given as to the time of notice. The offices of the Court were open only till five in the afternoon of the day in question. And it was held that the plaintiff must fail, it lying on him to show that the right of action was complete before the suit was com menced.

BYLES, J.-I am of the same opinion. The plaintiff alleges that the defendant made a certain contract with him, and he describes that contract. The defendant by his plea denies that he made the contract described. The plaintiff at the trial proves a contract different from that which he alleges in his declaration. That is a fatal variance, and, for the reasons stated by my Brother Williams, one that no amendment will cure.

KEATING, J.-I was at first inclined to think with Mr. Field, that the plea of non acceptavit referred to the time of the acceptance of the bill. But, on consideration, I think the plaintiff was bound to show a bill overdue at the time of the commencement of the action.

Rule absolute.

*730]

*MARTIN v. REID. Jan. 14.

The plaintiff, being indebted to one B. in the sum of 407., entered into a written agreement with him, whereby he agreed that B. should have his horse, van, cart, and two sets of harness, "for what he owed him;" and by the memorandum it was further agreed that B. should keep the articles mentioned until the plaintiff paid him the 407.: and the memorandum concluded thus,-"The said B. has received into his possession the said horse, van, cart, and two sets of harness this 24th December, 1860."

B. received into his actual possession the horse and van and one set of harness, but, having no place to put them in, he left the cart and the other set of harness with the plaintiff, with an understanding that he was to take them whenever he pleased.

B. having become insolvent, the plaintiff got back the horse, van, and set of harness: but B.'s assignee seized the whole of the things mentioned in the memorandum, and caused them to be sold by the defendant, an auctioneer :

Held,--that being the only question raised at the trial,-that there had been a sufficient delivery of the goods to B. to vest the property in him, subject to the right of the pawnor to redeem; and that, consequently, the plaintiff was not entitled to recover.

Quare, as to the right of a pawnee to sell the pledge, where no day has been fixed for the payment of the sum for which the chattel is impignorated?

TROVER for a van, harness, cart, and horse. Pleas, not guilty, and that the van, harness, cart, and horse were not the property of the plaintiff. Issue thereon.

The cause was tried before Keating, J., at the sittings at Westminster after last Trinity Term. It appeared that the plaintiff, being indebted to one Jacob Bowers, entered into an agreement with him in the following terms:

"London, Dec. 24th, 1860.

"Memorandum of agreement made and entered into this 24th day of December, 1860, between Mr. John Martin of Chesterfield Street, Marylebone, and Mr. Jacob Bowers, of No. 12, Union Place, Regent's Park, Marylebone: First, he the said J. Martin do hereby agree to allow the said J. Bowers to have my horse, van, cart, two sets of harness, for what I owe the said Jacob Bowers, namely, the sum of 391. 13s. 4. and it is further agreed that the said Jacob Bowers doth maintain the said horse, and keep possession of the said horse and cart and two sets of harness, and to have his own name upon the said van and cart until the said John Martin repays to the said J. Bowers the sum of 397. 13s. 44d. The said J. Bowers has received into his possession the said horse, van, cart, and two sets of harness, this 24th day of December, 1860. "JOHN MARTIN. "JACOB BOWERS."

*Under this agreement Bowers took possession of the horse, *731] van, and one set of harness, leaving the cart and the other set of harness in the possession of Martin (Bowers having no convenient place to keep them), with an understanding that he (Bowers) was to have them. whenever he chose. Bowers afterwards became insolvent; whereupon Martin took back the horse, van, and harness. The official assignee seized and sold the whole of the goods, and employed the defendant, an auctioneer, to sell them. On the sale they realized only 97. The plaintiff had notice that the things were about to be sold, and might have redeemed them for 107.

On the part of the defendant, it was insisted that the property in

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the articles passed to Bowers by the agreement of the 24th of Decem

ber. 1860.

The jury having found for the plaintiff, assessing the value of the goods at 97, leave was reserved to the defendant to move to set aside that verdict and instead thereof to enter a verdict for him, if the Court should be of opinion that the property did pass.

M. Smith, Q. C., accordingly, in Michaelmas Term last, obtained a rule nisi to enter a verdict for the defendant, on the ground that the plaintiff, upon the construction of the agreement, had no property to entitle him to maintain the action.

Petersdorff, Serjt., and Hopwood, now showed cause. If the arrangement effected by the memorandum of the 24th of December, 1860, amounted to no more than a pawn or pledge, the pawnee had only a special property or interest in the goods, and had no right to sell them. A pledge differs from a mortgage in this, that, in the case of a mortgage, the property passes. This, it is submitted, is a mere pledge, and no time is fixed for the redemption. The distinction is clearly *expressed in Story on Bailments, $287. "A mortgage of goods," [*732 says that learned author, "is in the common law, distinguishable from a mere pawn. By a grant or conveyance of goods in gage or mortgage, the whole legal title passes conditionally to the mortgagee; and, if the goods are not redeemed at the time stipulated, the title becomes absolute at law, although equity will interfere to compel a redemption. But, in a pledge, a special property only passes to the pledgee, the general property remaining in the pledger. There is also another distinction. In the case of a pledge of personal property, the right of the pledgee is not consummated, except by possession; and, ordinarily, when that possession is relinquished, the right of the pledgee is extinguished or waived. But, in the case of a mortgage of personal property, the right of property passes by the conveyance to the pledgee, and possession is not or may not be essential to create or to support the title." Here, the question is, whether the property passed by the contract, and by the contract alone. It is submitted that it did not. No time is mentioned for the redemption. The general property remained unaltered in Martin: the pawnee had no right to take possession and sell the goods. [WILLES, J.-In Pothonier v. Dawson, Holt, N. P. C. 383 (E. C. L. R. vol. 3), it was laid down by Gibbs, C. J., that, if goods are deposited as a security for a loan of money, such deposit constitutes more than the right of lien; and it is to be inferred that the contract between the parties is, that, if the borrower do not repay the advance, the lender shall be at liberty to reimburse himself by the sale of the deposit. And there is only one dictum the other way. WILLIAMS, J.-The point was argued, but not decided, in Franklin v. Neate, 13 M. & W. 481.t] In the notes to Coggs v. Bernard, in 1 Smith's Leading Cases, 4th edit. 171, it is said: "A pawn differs, on the one hand, *from a lien, which conveys no right to sell whatever, but only a right to retain until the debt in respect of which the lien was created has been satisfied, and, on the other hand, from a mortgage, which conveys the entire property of the thing mortgaged to the mortgagee conditionally, so that when the condition is broken the property remains absolutely in the mortgagee; whereas, a pawn never conveys the general property to the

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pawnee, but only a special property in the thing pawned; and the effect of a default in payment of the debt by the pawnor is, not to vest the entire property of the thing pledged in the pawnee, but to give him a power to dispose of it, accounting for the surplus, which power, if he neglect to use, the general property of the thing pawned continues in the pawnor, who has a right at any time to redeem it." In Ryall v. Rolle, 1 Atk. 165, 167, Burnet, J., says: "All that can be argued from the Roman law with regard to pawns will be foreign to the question, and so will what may be argued from the English law with regard to pawns, for delivery is of the essence of an English pawn: 5 H. 7, fo. 1; Bro. Abr. Pledges, pl. 20, Trespass, pl. 271; 2 Rol. Rep. 429; and no authority contradicts these resolutions." Rvall". Rolle is approved of by this Court in Reeves . Capper, 5 N. C. 136 (E. C. L. R. vol. 35), 6 Scott 877. If, then, this is a pawn, it is imperfect, for want of possession: and a parol gift of chattels passes no property to the donee without delivery: Irons v. Smallpiece, 2 B. & Ald. 551 (E. C. L. R. vol. 5). [WILLIAMS, J., referred to Serjt. Manning's notes to The London and Brighton Railway Company ". Fairclough, 2 M. & G. 674, 691 (E. C. L. R. vol. 46), and to Lunn v. Thornton, 1 C. B. 379, 381 (E. C. L. R. vòl. 50).]

M. Smith, Q. C., and Bullar, in support of the rule.-[ERLE, C. J. -As between these parties, we do not attach much weight to *734] the argument that the possession did not pass to the pawnee. The difficulty we feel is as to the sale of the pawn.] That point was not made at the trial. [WILLES, J.-It has been held that the debt may be taken into consideration in mitigation of damages in an action for converting the pledge. If this point had been made, therefore, it might have been a question whether the plaintiff could have recovered more than nominal damages.] The plaintiff had notice that the sale was about to take place, and might have released the goods by tendering the amount of the debt for which they were pledged.

ERLE, C. J.-The point reserved at the trial, and upon which this rule was granted, was, whether the property in these goods passed to Bowers under the agreement of the 24th of December, 1860. The transaction was this: Martin, being in possession of a horse, a van, a cart, and two sets of harness, and being indebted to Bowers, delivered to him the van, horse, and one set of harness, and authorized him by a written memorandum to take the cart and the other set of harness, to hold until Martin repaid him his debt. The effect of this arrangement was, that the goods were handed to Bowers as a pledge. Bowers stood in the position of a pawnee. Now, I take the law to be, that, to constitute a valid pledge, there must be a delivery of the article, either actual or constructive, to the pawnee; and, inasmuch as the memorandum purported to assign the property to Bowers, and as the horse and cart remained in the stable of Martin, the question is whether there has been a valid pledge here. The evidence on this point was, that Bowers, having no stable, requested Martin to allow the cart and harness to remain in his. In the written agreement, the articles are stated to be in the possession of Bowers. *Possession is an *735] equivocal term: it may mean either actual manual possession or the mere right of possession. The question is, whether, as between these parties, the words used constitute the premises of Martin the

premises of Bowers for this purpose. I am clearly of opinion that the intention of the parties will be carried out by holding them to be so. It has over and over again been decided that the words of an agreement are to have effect according to the mind and intention of the parties. Thus, a delivery of goods in satisfaction of a debt has been held to amount to payment. a) So, where goods have been purchased and left in the possession of the vendor for a special purpose of the vendee, that has been held to amount to a delivery.(b) So, where a horse was sold, but left in the stable of the seller, being only removed to another stall, that was held to amount as between the buyer and the seller to a delivery. And in many instances the warehouse of the vendor has been held to be the warehouse of the purchaser, in order to carry out the intention of the parties. I therefore think there was in this case a sufficient delivery of these articles to the pawnee, and consequently this rule must be made absolute.

WILLIAMS, J.-I am of the same opinion. The only question reserved at the trial, was, whether the property mentioned in the memorandum of the 24th of December, 1860, passed to Bowers by way of pawn, by virtue of that instrument and the parol evidence. For the reasons given by my Lord, I think it cannot be disputed that there was evidence of a sufficient delivery within the rule. I do not wish to express any disrespect for the note by Mr. Smith to the case of Coggs v. Bernard, which has received the sanction of the [*736 learned editors of the last edition of that very valuable work. It is clear that the proceeds of the goods were not sufficient to cover the debt; and consequently no injustice will be done by allowing the pawnee to keep the produce of the sale. It is to be observed, however, that the note to Coggs v. Bernard supposes a day fixed for the redemption of the pledge; here, that fact is wanting. It is unnecessary to decide the point, for it is agreed on all hands that it was not reserved.

WILLES, J.-I am entirely of the same opinion. This is an attempt to set aside the agreement entered into between Martin and Bowers. The only question raised at the trial was, whether or not that agreement had the effect of passing the property to Bowers. This, like all other agreements, is to be construed, if possible, so as to carry into effect the intention of the parties: and that is best done by the construction which my Lord has put upon this instrument. The ground, therefore, taken by the plaintiff at the trial fails him. As to whether, notwithstanding that point fails the plaintiff, he might not have succeeded upon another, I agree that we are not called upon to go into that; though, if we thought any injustice had been done, we might have been disposed to grant a new trial, upon terms. But I think it likely that the learned counsel were aware that it had been decided. In cases of bare lien, it has been held that the jury may mitigate the damages due for the conversion by the amount of the debt due: and it would be idle to grant a new trial merely to bring about a nominal verdict. As to the right of the pawnee to sell the pledge, whenever that question comes to be decided, it will be necessary to refer to the civil law as stated in Mackeldey's Systema Juris Romani, title Pledge,

(a) See Cannan v. Wood, 2 M. & W. 465.†

(b) Elmore v. Stone, 1 Taunt. 458.

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