CHAP. VI.
A Loan[378] is sometimes made, upon the Credit of a putting in Pledge. When a Loan of this description takes place, sometimes moveables, as Chattels, are put in pledge: sometimes immoveables, as Lands and Tenements, and Rents, whether consisting in Money, or in other things. When a Compact is made between a Creditor and Debtor, concerning the putting any thing in pledge, then, whatever be the mode of pledging, the Debtor upon his receiving the thing lent to him, either immediately delivers possession of the Pledge to the Creditor, or not. Sometimes also a thing is pledged for a certain period, sometimes indefinitely.
Again, sometimes, a thing is pledged as a Mortgage, sometimes not. A pledge is designated by the Term Mortgage,[379] when the fruits and Rents, which are received in the interval, in no measure tend to reduce the demand for which the pledge has been given.
When, therefore, moveables are put in pledge, so that possession be delivered to the Creditor for a certain period, he is bound to keep the pledge safely, and neither to use it, nor in any other manner employ it, so as to render it of less Value. But should it, whilst in Custody and within the Term, suffer deterioration, by the fault of the creditor, a Computation shall be made to the extent of the detriment, and deducted from the Debt. But, if the thing be of such a description that it necessarily requires some expence and cost, for Example, that it might be fed or repaired, then the stipulation of the parties on that subject shall be abided by. In addition—when a thing is pledged for a definite period, it is either agreed between the Creditor and Debtor, that if, at the time appointed, the Debtor should not redeem his pledge, it should then belong to the Creditor so that he might dispose of it as his own; or no such agreement is entered into between them. In the former case, the Agreement must be adhered to; in the latter, the Term being unexpired[380] without the Debtor’s discharging the Debt, the Creditor may complain of him, and the Debtor shall be compelled to appear in Court, and answer by the following Writ.
CHAP. VII.
“The King to the Sheriff, Health. Command N., that justly and without delay, he redeem such a thing which he has pledged to R., for a hundred Marks, for a Term which is past, as he says, and of which he complains that he has not redeemed it; and, unless he does so, &c.”
CHAP. VIII.[381]
In what manner the Debtor shall be distrained to appear in Court, whether by the Pledge itself, or by another mode, is doubtful. But that may be left to the discretion of the Court, as the matter can be sufficiently expedited whichever mode is resorted to. It is, however, sometimes requisite that he should be present in Court, before the thing in question be adjudged absolutely to the Creditor; since, were he present, he might alledge some reason, why the thing should not irrevocably belong to the Creditor. But when the Debtor appear in Court, he will either confess, that he pledged the thing in question for the Debt, or he will deny it. If he confess it, as he has in so doing confessed the Debt, he shall be commanded at a reasonable period to redeem his pledge; and, unless he should comply, liberty shall be given to the Creditor, from that time, to treat the pledge as his own property, and do whatever he chuses with it. Should the Debtor, however, deny it, he will then either acknowledge that the thing is his property, but that for some cause it happened to be out of his possession, and to have got into the hands of the other, as a Loan, or as being intrusted to him for Custody or from some other cause of this nature; or he will confess in Court, that the thing is not his property, which if he should do, liberty shall immediately be conceded to the Creditor, to dispose of the thing in question, as his own. But, if he alledge that the thing is his property, but denies as well the pledge as the Debt; then, the Creditor shall be obliged to prove against him, that he intrusted the other to the extent of the present demand, and that the Debtor in return pledged to him the specific object in dispute. The nature of this proof may be collected from what we formerly laid down, in treating of Pledges who deny their suretyship. But, previous to the period fixed for the payment, the Debt cannot be demanded; although, if a thing be pledged indefinitely, and without any period being fixed, the Creditor may, at any time he chuses, demand the Debt. The Debt being discharged by the person owing it, the Creditor is bound to restore to him the thing pledged, without its having suffered any deterioration; nor, if the thing should by any accident be lost or injured whilst in his Custody, is the Creditor from that circumstance liberated from the Debtor’s claim; because he is decidedly bound, either to restore the thing pledged or to make satisfaction for it, or to lose his Debt. When a Compact is entered into between a Debtor and Creditor, concerning the pledging of a particular thing, if the Debtor, after having received the Loan, should not deliver the pledge,[382] it may be asked, what step should the Creditor have recourse to in such a case, especially as the same thing may be pledged to many other Creditors, both previously and subsequently? Upon this subject, it should be remarked, that the King’s Court is not in the habit of giving protection to or warranting private Agreements of this description, concerning the giving or accepting things in pledge, or others of this kind, made out of Court, or even in any other Court than that of the King. If, therefore, such Compacts are not observed, the King’s Court does not interfere: and hence it is not bound to answer concerning the right of different Creditors, as prior or subsequent, or respecting their privileges. But, when an immoveable thing is put into pledge, and Seisin of it has been delivered to the Creditor for a definite term, it has either been agreed between the Creditor and Debtor, that the proceeds and rents shall in the mean time reduce the Debt, or that they shall in no measure be so applied. The former Agreement is just and binding: the other, unjust and dishonest, and is that called a Mortgage, but this is not prohibited by the King’s Court, although it considers such a pledge as a species of Usury.[383] Hence, if any one die having such pledge, and this be proved after his death, his property shall be disposed of no otherwise than as the Effects of a Usurer.