69 



PLEDGE. 



PLEDGE. 



670 



the first instance, and introducing numerous charges and suggestions. 

 Thus if the plaintiff anticipates that the defendant may plead to his 

 bill, and so prevent him from obtaining the complete answer which he 

 wishes, he will charge various matters in his bill which will destroy 

 the effect of the anticipated plea, unless the defendant supports his 

 plea by a full answer to such matters. 



According to recent practice the plaintiff may at any time after the 

 time allowed for answering has expired, move the court for a decree, 

 in which he relies entirely upon the admissions in the answer to 

 substantiate his own case. If the answer is against him, he must file a 

 replication, by which he joins issue with the defendant, and both sides 

 are at liberty at ones to go into evidence to support their several 

 cases. 



The form of pleading used in this country is derived from that of 

 the Romans. In Bracton's work, the fifth part, which is entitled 

 ' De Exceptionibus," occupies the same place in his treatise as the same 

 matter does in the Institutes of Gains and of Justinian, and the terms 

 used by Bracton are those of the Roman law : indeed, the whole work 

 of Bracton follows the method and order of Justinian's Institutes. A 

 comparison between the Roman and English procedure in equity is 

 made in Gilbert's ' Forum Romanum.' 



After the Legis Actiones among the Romans fell into disuse, the 

 mode of procedure was per formulas, the nature of which is fully 

 explained by Gains (iv. 39, &c.). The Demonstratio was that part of 

 the formula which showed the matter upon which the plaintiff's 

 demand was founded ; the Intentio contained the demand ; the Adju- 

 dicatio gave power to a judex to decide on the matters in dispute ; and 

 tin; Couderanatio empowered him to make a decree in favour of the 

 plaintiff, or to dismiss the defendant, according to the evidence pro- 

 duced before him. The formula was a proceeding in jure, that is, 

 before the praetor, and it contained the instructions to the judex, to 

 whom, according to Roman practice, the investigation of the facts and 

 the ministerial duty of pronouncing the decree were entrusted. The 

 answer of the defendant to the plaintiff's claim was called Exceptio, 

 and exceptiones were either peremptoriae in the bar, or dilatorue 

 in abatement. The plaintiff might answer the defendant's plea by his 

 Replicatio, and the defendant might answer the Replicatio by a Dupli- 

 catio, to which the plaintiff might answer by a Triplicatio ; " and the 

 practice of all such pleadings," says Gaius (iv. 129), " has been sometimes 

 carried even farther than this, owing to the multifarious character of 

 the matters in dispute." 



One example may be sufficient as an instance of the Roman pleading. 

 " If an argentarius sue for the price of a thing sold by public auction, 

 the form of the defendant's plea may be a submission to have judgment 

 against him, provided (si) the thing which was purchased has been 

 delivered to him ; and this is a good plea (exceptio). But if the con- 

 ditions of sale were that there should be no delivery till the money 

 was paid, the argentarius may put in a replication to this effect, sub- 

 mitting to the plea, unless (nisi) the conditions of sale were that the 

 thing should not be delivered to the purchaser before he had paid the 

 money " (iv. 126). The words si and aii, which are used in this pas- 

 sage, were introduced merely for the purpoee of adapting the pleadings 

 for insertion in the formula ; for the C'ondemnatio in the formula was 

 conditional ; that is, if so and so is proved, then make such and such 

 a decree against the defendant; and if not proved, dismiss the de- 

 fendant. 



PLEDGE is a thing bailed (delivered for a temporary purpose 

 [BAILMENT] ) as a security to the bailee for the performance of some 

 engagement on the part of the bailor. When the pledge is for a debt, 

 more especially where it is given to secure a loan at interest, it is com- 

 monly called a pawn. [PAWNBROKER.] In bailments the degree of 

 care required from the bailee varies according to circumstances. When 

 the bailment is for the sole benefit of the bailee, he is bound to use 

 the greatest care, and is excused by nothing but unavoidable accident 

 or irresistible force. When the bailment is for the mutual bene6t of 

 bailor and bailee, the latter is bound to take the same care of the thing 

 bailed as a prudent man usually does of hU own. When the bailment 

 is for the sole benefit of the bailor, it is sufficient if the bailee keep 

 the goods bailed as carefiUly as he does his own, however negligent he 

 may he. Different writers on the law of bailments refer the contract 

 of pledge to each of these divisions. 



The pledgee is bound to return the pledge and its increments, if 

 any, upon being requested so to do, after the performance of the 

 engagement. This duty is extinguished if the pledge has ceased to 

 exist by some cause for which the pledgee is not answerable. But he 

 is responsible for all losses and accidents which happen after he has 

 done anything inconsistent with his duty as pledgee, or has refused to 

 do his duty. When the full amount of the debt or duty therefore is 

 tendered and refused, and the pledge is detained, the pledge is at the 

 sole risk of the pledgee : so if the pledgee misuse the pledge. In every 

 case where the pledge has sustained injury from the wrongful act or 

 default of the pledgee, the owner may recover damages to the amount 

 of the injury, in an action on the case. By the act of pledging, the 

 pledgor implicdly warrants that the property is his own, and such as 

 he can rightfully pledge. 



Tlie contract of pledge may be extinguished by the performance of 

 the engagement for which the pledge was given, or by satisfying the 

 engagement in any other manner, either in fact or by operation of law, 



as by the acceptance of a higher security without an express stipula- 

 tion that the pledge shall continue. 



If the engagement, to protect which the pledge is given, be not 

 performed within the stipulated time, the pledgee may sell, upon 

 giving due notice to the pledgor. If no time be stipulated, the pledgee 

 may give notice that he requires a prompt fulfilment of the engage- 

 ment, upon non-compliance with which he may sell. 



The possession of the pledge does not affect the right of the pledgee 

 to enforce performance of the engagement, unless there be a special 

 agreement, by which he has engaged to resort to the pledge only, or to 

 look to it in the first instance. 



Though the pledgee may sell, he cannot appropriate the pledge to 

 himself upon the default of the pledgor ; nor is he at liberty to use it 

 without the permission of the owner, expressed or clearly implied. 

 Such an implication arises where the article is of a nature to be bene- 

 fited by or to require being used, in which latter case the use is not 

 only justifiable but indispensable to the discharge of the duty of the 

 pledgee. (Story's ' Commentaries on Law of Bailment.') 



As to the power of an agent to pledge, see AGENT ; and FACTOR. 



PLEDGE (Roman). This word formerly denoted a person who 

 was a security for another ; but it now denotes a thing which is a 

 security, and generally for a debt. 



The chief rules of English law as to mortgaging and pledging are 

 derived from the Roman law, in which however there is no distinction 

 among pledges, dependent on the nature of the thing pledged, whether 

 it was a thing moveable or immoveable, corporeal or incorporeal ; and a 

 thing could not be the subject of pledge unless it could be the subject 

 of buying and selling, for the power of selling a pledge was an im- 

 portant part of the creditor's security. A man might pledge a thing 

 either for his own or another person's debt. The terms used in the 

 Roman law to express pledging, and also the tiling pledged, are Pignus 

 and Hypotheca. It is properly hypotheca, where there is a bare agree- 

 ment (nuda conventio) that a thing shall be a security to a creditor for 

 a debt, and the thing remains in the possession of the debtor. The 

 word hypotheca (v*o(MtKri) is Greek, and denotes a thing subjected to a 

 claim or demand. When the thing was delivered to the creditor, it 

 was called Pignus (Isid., ' Orig.,' v., c. 25) ; and as moveable things 

 would for obvious reasons be most frequently delivered, a notion got 

 established among some Roman lawyers, aided by an absurd etymology 

 (pignus appellatum a pugno, ' Dig.,' 50, tit. 16, s. 238), that the term 

 pignus was applicable only to a pledge of moveable things ; and this 

 notion has also prevailed in modern times. The true etymology of 

 pignus seems to be the same as that of pactum. It is generally said 

 that hypotheca corresponds to the English mortgage, and pignus to 

 pawn or pledge ; but this is not the case. No ownership was trans- 

 ferred by the Roman hypotheca. The term hypothecation in English 

 law is still used to express the mortgage of a ship or its cargo. 



After the time agreed on for payment was passed, the creditor had 

 the right of selling the pledge and of retaining his debt out of the 

 produce of the sale. If the produce of the sale was not sufficient to 

 discharge the debt, he had a personal action against the debtor for the 

 remainder. Originally perhaps he could only have this right of sale 

 by express contract, but subsequently the right to sell (jus distraheudi 

 sive vendendi) was an essential part of the contract of pledge. Though 

 the creditor was not the owner of the thing (dominus), still he could 

 transfer ownership to the purchaser, a doctrine that is only intelligible 

 on the supposition that he sold it as the attorney or agent of the 

 debtor. But the creditor could only sell the thing in respect of the 

 debt for which the thing was pledged, and not in respect of other 

 debts due to him from the debtor, though he might apparently retain 

 the surplus of the sale in his hands as a satisfaction for such other 

 debts. The power of sale was to be exercised pursuant to the terms 

 of the contract ; and when there was no agreement as to the form and 

 manner of sale, the law prescribed the mode of proceeding, which the 

 creditor was bound to observe strictly. It was once usual to insert in 

 the contract of pledge a Lex Commissoria, that is, a condition by 

 virtue of which the thing pledged became the absolute property of the 

 creditor, if the money was not paid at the time agreed on. But by a 

 constitution of Constantine (' Cod.', viii., tit. 35) it was forbidden to 

 insert such a clause in the contract. If anything remained over after 

 satisfying the creditor, it belonged to the debtor. 



As the pledgor remained the owner of the thing pledged, he could of 

 course sefl it, but the purchaser took it subject to the pledge. The 

 creditor who was in possession of a pledge was answerable for any 

 damage that befel it owing to dolus or culpa, that ia, fraud or neglect, 

 but he was not answerable for unavoidable loss. 



A pledge was determined in various ways ; by the destruction of 

 the thing, by the creditor releasing the debtor, by the debtor paying 

 the debt, and in other ways. When the debtor offered the money to 

 his creditor, he was entitled to have the pledge restored to him. This 

 might be obtained by an actio pignoraticia, which was an actio in 

 personam, and also lay for damages done to or sustained by the thing, 

 or for the surplus of the money if the pledge had been sold by the 

 creditor. The creditor had a contraria pignoraticia actio against the 

 debtor for expenses incurred as to the pledge, for any fraud in the 

 matter of the pledge, as passing off base for better metal, and in some 

 other cases. 



The Roman law of pledges has been treated by various writers at 



