(w) Jennison v. Parker, 7 Mich. 365. See Roberts v. Thompson, 14 Ohio put to expense or extraordinary trouble to preserve the value of the pledge, he may charge the owner for it, unless there be a bargain to the contrary, or the nature of the case negatives his right to make such charge.

(N. S.), 1.

(x) In Coggs v. Bernard, Lord Holt makes the following remarks upon the right of the pledgee to use the pledge while in his possession: "If the pawn be such as it will be the worse for using, the pawnee cannot use it, as clothes, etc.; but if it be such as will be never the worse, as if jewels for the purpose were pawned to a lady, she might use them. But then she must do it at her peril, for whereas if she keeps them locked up in her cabinet, if her cabinet should be broken open, and the jewels taken from thence, she would be excused; if she wears them abroad, and is there robbed of them, she will be answerable. And the reason is, because the pawn is in the nature of a deposit, and as such is not liable to be used. And to this effect is Owen, 123. But if the pawn be of such a nature as the pawnee is at any charge about the thing pawned, to maintain it, as a horse, cow, etc., then the pawnee may use the horse in a reasonable manner, or milk the cow, etc., in recompense for the meat." See also Mores v. Conham, Owen, 123; Anonymous, 2 Salk. 622; Thompson v. Patrick, 4 Watts, 414.

(y) Thompson v. Patrick, 4 Watts, 414.

(yy) Haskins v. Kelly, 1 Rob. 160.

(yz) Hunsaker v. Sturgis, 29 Cal. 142.

If the pledge be stolen from him he is not liable, unless the theft arose from or was connected with a want of ordinary care on his part. (z) By the civil law, the theft raised the presumption of neglect, and the bailee was responsible unless he could show an absence of negligence on his part. We doubt whether this be the rule of the common law. If the pledge be stolen, the theft does not of itself discharge the bailee; but the bailor may make him responsible by showing that it happened through a want of ordinary care.

By the civil law, in the case of pignus, the possession of the thing pledged passed to the creditor; in the case of hypotheca, the possession of the thing hypothecated remained with the owner. This distinction has not been deemed of great importance in England, and the difference between a pledge and a mortgage has not until lately been strongly marked. In recent times, however, and in this country, this distinction is assuming a new importance. In all our commercial cities, the pledging of personal property, especially of stocks, has become very common, and recent cases have established, or at least affirmed, rights and liabilities peculiar to such contract, and quite different from those which attend a mortgage. (a)

(z) Sir William Jones's distinction (Essay on Bailm. 75) between clandestine theft and violent theft, taken from the civil law, is not sustained by common-law authorities. See Co. Lit 89 a; Southcote's case, 4 Rep. 83 b.

(a) In Cortelyou v. Lansing, 2 Caines Cat. 200, the distinction between a pledge and a mortgage, and the peculiar qualities of a pledge, are very fully and ably considered. In Barrow v. Paxton, 5 Johns. 260, the case of Cortelyou v. Lansing being cited by counsel, Kent, C. J., said: "That case was never decided by this court. It was argued once, and I had prepared the written opinion which appears in the report of Mr. Caines; but the court directed a second argument, which, for some reason or other, was never brought on, so that no decision took place on the points raised in the case. How my opinion got into print I do not know. It was probably lent to some of the bar, and a copy taken, which the reporter has erroneously published as the opinion of this court. This circumstance may lessen its authority. But as Chancellor Kent has referred to it in his Commentaries, we venture to do so also. Whatever be its authority, of its instructiveness there can be no doubt. The learned judge says: "The note in question came under the strict definition of a pledge. It was delivered to the defendant, with a right to detain as a security for his debt, but the legal property did not pass, as it does in the case of a mortgage, with a condition of a defeasance. The general ownership remained with the intestate, and only a special property passed to the defendant. It is, therefore, to be distinguished from a mortgage of goods; for that is an absolute pledge, to become an absolute interest if not redeemed at a fixed time. Besides, delivery is essential to a pledge; but a mortgage of goods is, in certain

It was undoubtedly a rule of the ancient common law of England that delivery was essential to a pledge; and the difference between a pledge and a mortgage consisted in this. The possession of the pledge passed to the pledgee, but the property did not pass; a thing mortgaged might remain in the possession of the mortgagor, but the right of property passed to the mortgagee. The pledgee held the pledge until his debt was paid, the pledge itself remaining the property of the pledgor. The mortgagee acquired the property of the thing mortgaged, the mortgagor parting with the property as in the case of a sale, reserving only the right to defeat the transfer and re-acquire the property by paying the debt. But this distinction has not always been recognized, or, at least, not accurately observed. It seems, however, to be now held, that possession of a pledge must be delivered to the pledgee; (b) that this possession may be according to the nature of the thing, and where the pledge does not permit of manual delivery, but consists of stocks, which are transferred upon the books of the company with issue of a new certificate, if the transfer be to secure a debt, and the debtor has a right to the restoration of the property on payment of the debt at any time, the transaction is a pledge and not a mortgage, although the legal title passes to the creditor. This is a very nice, and perhaps a difficult distinction; but, as a consequence of it, it is held, that the creditor takes the stock only to hold, and not to use; that the property is not in him; that he cannot sell cases, valid without delivery. The mortgage and the pledge or pawn of goods seem, however, generally to have been confounded in the books, and it was not until lately that this just discrimination has been well attended to and explained." See also Homes v. Crane, 2 Pick. 607; Jones v. Smith, 2 Ves. Jr. 372, 378; Brownell v. Hawkins, 4 Barb. 491; Haskins v. Patterson, 1 Edm. Sel. Cas. 201. In this last case, Marvin, J., said: "A mortgage is a sale of goods, with a condition that if the mortgagor performs some act it shall be void. If the condition is not performed, the goods become the absolute property of the mortgagee. Before the happening of the contingency upon which the title is to be defeated' or become absolute, the possession of the goods may be in the mortgagor or the mortgagee. In the case of a pledge, the property must be delivered to the pawnee. This is of the very essence of a pledge." the stock until the debt is due, and that if it be * payable on demand, or payable presently without demand, he cannot sell until demand, even if it was agreed between the parties that he might sell without notice to the debtor; (bb) that if he sells, trover may be maintained against him by the debtor as for a wrongful conversion, although the debt be not paid.